Four federal Indian law experts digest the Supreme Court’s ‘shocking‘ decision to grant state governments the power to prosecute crimes in Indian Country.
As part of its recent precedent-breaking spree, the U.S. Supreme Court turned federal Indian law on its head this week on Wednesday, June 29. In the case of Oklahoma v. Castro-Huerta, a majority of five conservative justices sided with the state of Oklahoma, finding that state governments have the legal jurisdiction to prosecute non-Native citizens for crimes committed against Native citizens on sovereign tribal lands. The opinion, authored by Trump-appointed Justice Brett Kavanaugh, breaks with centuries of established federal Indian law. Until this decision, state law enforcement agencies could intervene in Indian Country crimes only by an act of Congress.
The Castro-Huerta case revisited questions of jurisdiction and sovereignty that were central to the landmark July 2020 case McGirt v. Oklahoma. That case concluded that Congress had never disestablished the reservations of the Cherokee, Choctaw, Seminole, Chickasaw and Muscogee Creek nations in Oklahoma — roughly half of the state’s present land base — and that individuals charged with crimes on tribal lands could be prosecuted by either federal or tribal officials. This latest case now narrows the court’s previous ruling on tribal sovereignty in McGirt, and inserts state jurisdiction, as well. As the author of the dissenting opinion, Justice Neil Gorsuch denounced the majority decision reached by his conservative colleagues. “This declaration comes as if by oracle, without any sense of the history recounted above and unattached to any colorable legal authority,” Gorsuch wrote. “Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom.”
High Country News spoke with four federal Indian law experts in an effort to unpack precisely what this new ruling means for the citizens and nations of Indian Country, and to better understand what the court’s willingness to eschew established precedent will mean for the health of Indigenous sovereignty in the months and years to come.
This conversation has been edited for clarity and length.
High Country News: On Wednesday [July, 2022], the U.S. Supreme Court ruled 5-4 in Oklahoma v. Castro-Huerta that the state of Oklahoma, and presumably all states, have jurisdiction to charge non-Natives committing crimes against Native citizens. How significant of a departure is this from existing precedent, where a state’s right to prosecute in Indian Country required an act of Congress?
Stacy Leeds (Cherokee Nation; foundation professor of law and leadership at the Sandra Day O’Connor College of Law, Arizona State University). Photo credit: High Country News
Stacy Leeds (Cherokee Nation; foundation professor of law and leadership at the Sandra Day O’Connor College of Law, Arizona State University): The ruling represents a shocking disregard for centuries of prior precedent and a profound disconnect from historical context. The most basic tenet for federal Indian law is that the power over Indian Affairs is consolidated with the federal government to the exclusion of the states.
The sweeping language in this case upends the very foundations of the field. The court casually states without citation to any legal authority.
Elizabeth Reese (Yunpoví; assistant professor of law, Stanford Law School): This decision is a sweeping change in Indian law. It flips precedent and existing presumptions on their head. Yesterday, the preemption was that states have no power over crimes in Indian Country. The narrow exception, from McBratney, that states have jurisdiction over non-Indian on non-Indian crime was always a bit of a puzzle, given how contrary its reasoning was to the rest of Indian law decisions. It was treated like an outlier, a case with fragile foundations that scholars would occasionally ask me to make sense of because it was so inconsistent with the rest of federal Indian law doctrine. The holding in this case is ostensibly limited to just non-Indian on Indian crimes, but its reasoning supports a new era where state authority over tribal lands is the default assumption. I barely recognize the federal Indian law or the American history described in the majority opinion — it’s just that off base.
Matthew Fletcher (Grand Traverse Band of Ottawa and Chippewa Indians; foundation professor of law and director of the Indigenous Law and Policy Center, Michigan State University). Photo credit: High Country News
Matthew Fletcher (Grand Traverse Band of Ottawa and Chippewa Indians; foundation professor of law and director of the Indigenous Law and Policy Center, Michigan State University): Castro-Huerta is a dramatic departure and cannot be reconciled with McGirt v. Oklahoma. The court seems to believe that the (1832) Worcester v. Georgia rule that state law has no force in Indian Country — one of the foundations of federal Indian law — is dead. It doesn’t point to any case that says that, so it cannot even point to a year when that general rule went away, but there it is. The majority is going back to what I call “Canary Textualism,” where the Supreme Court takes the lead on national Indian affairs policy instead of Congress or the tribes.
Bethany Berger (Wallace Stevens professor of law, UConn School of Law). Photo credit: High Country News
Bethany Berger (Wallace Stevens professor of law, UConn School of Law): It’s big. It rejects the established law taught to every federal prosecutor working in Indian Country, every law student studying federal Indian law, and agreed to by every state court considering the question.
HCN: I recognize there will be a litany of responses to this question that will be determined by the relationship between states and the bordering tribal nations, but what do you perceive as being the immediate effects of this decision for tribal citizens throughout Indian Country?
Leeds: Read in its most restrictive light, this case is only about state concurrent jurisdiction over non-Indians who commit crimes inside Indian Country. It may lead to more law enforcement confusion in the field because starting Oct. 1, when the expanded Violence Against Women Act kicks in, all three sovereigns will be recognized as having jurisdiction over some situations. Two of those situations, the federal and tribal jurisdiction are expressly provided for by Congress in various statutes. Only one of those situations springs anew by judicial fiat.
Read in its most expansive light, this case seems to support many types of state intrusion into Indian Country with the erasure of Indigenous nations and their rights to be governed by their own laws to the exclusion of state law. Tribal sovereignty is the right to make local laws and be ruled (only) by those local laws. Now it seems as if the court would support states’ rights to pass laws that tribes oppose and the barrier to state power would not be tribal sovereignty and express treaty rights, but instead, whether a case-by-case federal preemption analysis would keep the state at bay.
Reese: You are correct to flag that a lot will depend on what different states decide to do and their relationships with tribes. Immediately, however, this means that non-Indian crime on Indian crime — including the domestic violence cases that led to all the VAWA activism and reform over the last few decades — are now going to fall to the state and federal government. Increased state police presence could happen on tribal lands immediately, and tribal laws or federal law which previously may have shielded non-Indians from certain state law decisions are no longer a shield.
Fletcher: I don’t know that states and counties are going to swoop into Indian Country to subvert federal and tribal criminal justice prerogatives right away, but they could. Suddenly, without any preparation or cooperation, states and counties are a third sovereign in Indian Country. Who knows what could happen? Justice Gorsuch’s dissent provides an easy suggestion for Congress to fix the decision. Some state legislatures could choose — at tribal request — to stand down from exercising jurisdiction. And — though very unlikely given the history of conflict between sovereigns, states and counties — (it) could actually enhance Indian Country criminal jurisdiction.
Berger: It will mean that tribal citizens will face less protection and more abuse by police. We have years of studies of criminal justice on reservations where Congress gave states full criminal jurisdiction, and state jurisdiction just undermines support for tribal and federal systems without increasing effective responses to crime. Tribal victims are less likely to trust or report crimes to state police, and witnesses are less likely to work with them. But states don’t do the effective community policing that makes tribal citizens safer. The Castro-Huerta case is an example of this. For two years, the Oklahoma Department of Human Services had received reports of possible neglect of the victim in this case, a little girl with severe disabilities who could not feed herself and needed five bottles of specialized feeding a day. Her mother had several other children, and her stepfather, Mr. Castro-Huerta, was an immigrant who worked multiple jobs. It was only when Mr. Castro-Huerta and her mother — who had just given birth — brought the child to the emergency room that the state took her into custody. Oklahoma also never notified the girl’s tribe, the Eastern Band of Cherokee Indians in North Carolina, to seek their help in finding a better placement for the child. The state’s response — to arrest the stepfather and sentence him to 35 (years) — is sadly typical in cases involving state criminal jurisdiction in cases involving Indians, focusing just on punishment and not on effective prevention.
HCN: I have a two-parter to end on: First, do you anticipate that the politicization of the court and its ruling today will embolden more states and private entities to challenge the sovereign rights of tribal nations?
Leeds: Yes, this provides the road map for the extension of state power.
Reese: Unfortunately, yes. Tribal sovereignty is even more vulnerable when the court is willing to disregard precedent and history. I fear that this case demonstrates how Oklahoma’s campaign to claw back power was more persuasive to the court than its precedents — that, in the words of Justice Gorsuch in McGirt, that “rule of the strong, not the rule of law” is what we can expect from this five-justice majority.
Fletcher: Justice Kavanaugh’s majority opinion is his first major writing in an Indian law case and it’s not good for Indian Country. He’s firmly in the Scalia-Rehnquist camp of skepticism toward Indian tribes, skepticism toward congressional policy decisions in Indian affairs, and extreme deference to states’ preferences. He claims to be a textualist, but he is happy to deviate from the text to fulfill those political commitments. The jury is still out on Justice Coney Barrett, another justice who has stated a commitment to textualism (and even wrote about textualism in her work as a law scholar). Her opinion in the Ysleta del Sur Pueblo bingo case was a good omen. When she is confronted with relatively clear text, she doesn’t so easily give up on her commitment to textualism just because a state government complains. Her vote in Castro-Huerta is disconcerting, however. We don’t have a separate writing from her in that case so we can’t be sure, but it appears she approved of the assertion of judicial power that has wreaked havoc in Indian affairs since the 19th century.
This court is quite likely the most radically activist court in American history. The court’s overruling of Roe is the tip of the iceberg. The court struck down the separation of church and state as well. In the next term, it’ll strike down affirmative action in higher education as well. This is a self-proclaimed textualist court that gratuitously deviates from its methodological commitments to advance certain political commitments — deference to states, deference to the police, deference to mainstream religion, and extreme skepticism of racial, gender and sexual minorities.
Berger: States and private entities have never stopped challenging the sovereign rights of tribal nations. This case just shows that — after a handful of cases where tribal sovereignty and precedent seemed to get some respect — the Supreme Court remains a very dangerous place for tribal rights.
HCN: And the second part: Given this is our bench for the foreseeable future, how much faith can those invested in the long-term political and legal strength of tribal nations truly put in this court? Particularly, I am thinking about Brackeen v. Haaland, the state-backed Indian Child Welfare Act challenge, among others. Put simply, can tribal citizens (and electeds and attorneys, etc.) trust SCOTUS after this decision?
Reese: Very little and no. I join the growing chorus of legal experts who are criticizing the faith we’ve put in the Supreme Court — particularly since Brown v. Board of Education — to be a guardian of law and the moral arc of the universe’s bend toward justice. We’ve given them a lot of power by putting so much faith in them. Far too much, I think. It’s time to stop waiting for the court to fix things or hoping that the best legal argument will prevail. It’s time to start talking about institutional reform to the Supreme Court, and to the Constitution broadly.
Fletcher: I would not trust this Court much at all, but that’s been true for the entire history of the United States. What makes this Court worse, however, is the extremity of its radicalism and lack of discipline. Nothing is sacred to this Court.
Berger: Given how much easier it is for the Justices to sympathize with states and non-Indians than with tribes and tribal citizens, trusting SCOTUS was never a safe move. For a few years starting in 2016, the Court seemed to be actually paying attention to precedent and the realities of life in tribal communities, and this breaks from that. It’s a bad sign for Brackeen, but that case always played into a lot of justices’ biases. But the choices facing tribes and their citizens are still the same: Try to stay out of the court, and try to make the best case possible if you have to go.
Nick Martin is an associate editor for HCN’s Indigenous Affairs desk and a member of the Sappony Tribe of North Carolina. We welcome reader letters. Email him at nick.martin@hcn.org or submit a letter to the editor. See our letters to the editor policy.
The graph shows average annual global temperatures since 1880 (source data) compared to the long-term average (1901-2000). The zero line represents the long-term average temperature for the whole planet; blue and red bars show the difference above or below average for each year. (These data were among the sources of data used in the State of the Climate in 2020’s temperature analysis, but here are compared to the 20th-century average. In the report, they are compared to the 1981-2010 average.)
U.S. Senator Michael Bennet held a telephone town hall event on Friday, Sept. 3 to answer questions and address concerns for Coloradoans. Though Bennet spends a lot of time in Washington D.C., he has been back in Colorado for the past few weeks. He has held 30 events in 13 different counties across the state and came away observing three things in need of attention: climate change, both man-made and natural infrastructure, and affordable healthcare, housing and education.
“I think the United States has not been investing in our people or our infrastructure for a very, very long time, and it shows. But things are beginning to change. Last month, the Senate passed a historic $1.2 trillion infrastructure bill on a bipartisan vote,” said Bennet…
Bennet is focusing on both paid family leave and climate change, as well. He advocates for paid parent leave so Coloradoans can stay home with a sick child or an elderly family member without losing his or her job.
As for climate change, Bennet recognizes the problems at hand: “We’ve got to act urgently on climate. If we don’t, I really worry that we’re not going to recognize our own state in a few years, and I think all of us refuse to hand our kids and grandkids a state where you can’t see the mountains or you can’t go outside half the summer and families live in fear of wildfire… droughts… There’s a lot of work to do ahead, and I’m more optimistic than I’ve been in a long time that the agenda in Washington (D.C.) reflects our priorities in Colorado. And that’s, in large part, thanks to the feedback I receive in conversations like this that I can carry back to Washington (D.C.).”
[…]
A caller from Westminster in Adams County, Ellen, expressed her disappointment in Bennet’s lack of actions taken to combat climate change: “I appreciate you saying you feel urgency over the climate crisis, but you need to act in line with that urgency. Your vote to prohibit banning fossil fuel development on public lands and your vote to support a liquefied natural gas export terminal in Texas (were) so unacceptable. To prevent more severe climate crises than we already face, we have to end extracting and burning fossil fuels.”
While Bennet made it clear he did not regret those votes, he did explain his reasoning for them: “I believe very strongly that if we are ever going to actually get off of fossil fuels, we have to have a plan to transition off of fossil fuels. I don’t believe that we could just get off them tomorrow and be done with it without driving energy prices through the roof… what we need is a thoughtful approach over the next 10, 20, 30 years to get this economy to a net zero carbon economy. If we don’t have a plan to get to net zero by 2050, then we’re not ever going to do it.”
[…]
A woman named Irma submitted an online question asking Bennet how he is protecting Colorado’s watershed and water supply.
From his research over the past year or so, Bennet discovered that it would cost $60 billion to protect the west’s watershed. While that seems like a steep price, Colorado has spent $60 billion in the past four to five years fighting fires. Bennet wrote a bill called the Outdoor Restoration Partnership Act which pushes to use funds for forest mitigation and watershed restoration. Bennet sits on the Senate’s Agriculture Committee, and he hopes his bill will be passed as part of the reconciliation package…
Marti from Lafayette in Boulder County, originally from Ohio, moved to Colorado to be closer to her family and enjoys the Colorado weather. She called with a question about poor air quality and frequent ozone alerts. More specifically, she shared her research on Suncor Energy in Denver and how it has not met federal admission standards for toxic gasses. She questioned how the company could be held accountable. Bennet was not as familiar with Suncor and made a note to look into whether or not that problem could be solved on a state or federal level or instead handled by the Environmental Protection Agency (EPA). Bennet also shared his wish to reinstate a law from when Hickenlooper was in office with a goal to capture fugitive methane from pipelines and drilling rigs, a law which President Trump removed.
The Senate confirmed Ms. Haaland to lead the Interior Department. She’ll be charged with essentially reversing the agency’s course over the past four years.
Dozens of tribal leaders have called upon Biden to appoint U.S. Rep. Deb Haaland, D-N.M, an enrolled tribal member of the Laguna Pueblo. Photo credit: Bridget Badore via High Country News
Representative Deb Haaland of New Mexico made history on Monday when the Senate confirmed her as President Biden’s secretary of the Interior, making her the first Native American to lead a cabinet agency.
Ms. Haaland in 2018 became one of the first two Native American women elected to the House. But her new position is particularly redolent of history because the department she now leads has spent much of its history abusing or neglecting America’s Indigenous people.
Beyond the Interior Department’s responsibility for the well-being of the nation’s 1.9 million Native people, it oversees about 500 million acres of public land, federal waters off the United States coastline, a huge system of dams and reservoirs across the Western United States and the protection of thousands of endangered species.
“A voice like mine has never been a Cabinet secretary or at the head of the Department of Interior,” she wrote on Twitter before the vote. “Growing up in my mother’s Pueblo household made me fierce. I’ll be fierce for all of us, our planet, and all of our protected land.”
Republican opposition to her confirmation centered on Ms. Haaland’s history of fighting against oil and gas exploration, and the deliberations around her nomination highlighted her emerging role in the public debates on climate change, energy policy and racial equity. She was confirmed on a 51-40 vote. Only four Republican senators — Lisa Murkowski and Dan Sullivan of Alaska, Susan Collins of Maine and Lindsey Graham of South Carolina — voted for Ms. Haaland’s confirmation…
The new interior secretary will be charged with essentially reversing the agency’s mission over the past four years. The Interior Department, led by David Bernhardt, a former oil lobbyist, played a central role in the Trump administration’s systematic rollback of environmental regulations and the opening up of the nation’s lands and waters to drilling and mining.
Ms. Haaland is expected to quickly halt new drilling, reinstate wildlife conservation rules, rapidly expand wind and solar power on public lands and waters, and place the Interior Department at the center of Mr. Biden’s climate agenda.
At the same time, Ms. Haaland will quite likely assume a central role in realizing Mr. Biden’s promise to make racial equity a theme in his administration. Ms. Haaland, a member of the Laguna Pueblo who identifies herself as a 35th-generation New Mexican, will assume control of the Bureau of Indian Affairs and the Bureau of Indian Education, where she can address the needs of a population that has suffered from abuse and dislocation at the hands of the United States government for generations, and that has been disproportionately devastated by the coronavirus…
As the agency takes on a newly muscular role in addressing climate change, she added, the department “will have to deal with new strategies for managing more intense wildfires on public land and chronic drought in the West. It’s hard to overstate the challenges with water.”
Among the first and most contentious items on Ms. Haaland’s to-do list will be enacting Mr. Biden’s campaign pledge to ban new permits for oil and gas projects on public lands…
Ms. Haaland’s ability to implement that ban successfully could have major consequences both for the climate and for the Biden administration. According to one study by Interior Department scientists, the emissions associated with fossil fuel drilling on public lands account for about a quarter of the nation’s greenhouse gases. But the policy will most likely be enacted at a time when gasoline prices are projected to soar — spurring almost-certain political blowback from Republicans ahead of the 2022 midterm elections.
For the drilling ban to survive legal challenges, experts say, Ms. Haaland will have to move with care.
“They may attempt a total ban, but that would be more vulnerable to a court challenge,” said Marcella Burke, an energy policy lawyer and former Interior Department official. “Or there’s the ‘death by a thousand cuts’ approach.”
That approach would make oil drilling less feasible by creating such stringent regulations and cleanup rules that exploration would not be worth the cost…
Ms. Haaland is also expected to revisit the Trump administration’s rollback of habitat protections under the Endangered Species Act. Under the Trump rules, it became easier to remove a species from the endangered list, and for the first time, regulators were allowed to conduct economic assessments — for instance, estimating lost revenue from a prohibition on logging in a critical habitat — when deciding whether a species warrants protection.
Such rules led to an exodus of staff, particularly from the Fish and Wildlife Service, Mr. Clement said…
The Interior Department also must submit a detailed new plan by June 2022 that lays out how the federal government will manage the vast outer continental shelf off the American coastline, an area rich in marine wilderness and undersea oil and gas resources.
Given Mr. Biden’s pledge to ban new drilling, the new offshore management plan will quite likely reimpose Obama-era policies that barred oil exploration on the entire East and West Coasts of the United States — while possibly going further, by limiting drilling off the coasts of Alaska and in the Gulf of Mexico. But writing the legal, economic and scientific justifications will be difficult…
As the department moves against offshore drilling, it is expected to help ramp up offshore wind farms. Last week, the agency took a major step toward approving the nation’s first large-scale offshore wind farm, near Martha’s Vineyard, Mass., a project that had been in the works for years.
Ephemeral streams are streams that do not always flow. They are above the groundwater reservoir and appear after precipitation in the area. Via Socratic.org
On March 2, 2021, the Tenth Circuit Court of Appeals reversed a ruling from the United States District Court for the District of Colorado in the case of Colorado v. EPA, et al., Nos. 20-1238, 20-1262, and 20-1263, that had issued a preliminary injunction blocking implementation of the Trump Administration’s Navigable Waters Protection Rule (“NWPR”) in the State of Colorado. Under the Tenth Circuit ruling, the NWPR was put back into force, and the State of Colorado’s case was remanded back to district court for further proceedings challenging the rule…
A number of lawsuits were filed challenging the NWPR, including Colorado v. EPA. The Colorado case was significant because Colorado sought, and was granted, a preliminary injunction blocking implementation of the NWPR in the State of Colorado. The State had argued that by reducing the reach of the Clean Water Act, the NWPR caused irreparable injury to the State because Colorado would be forced to undertake additional enforcement actions in place of the federal government to protect the quality of its waterways. While the district court had found this to be sufficient injury to support the State’s preliminary injunction, the Tenth Circuit found that it was too speculative and uncertain. Thus, the preliminary injunction was rejected and reversed because the State of Colorado could not show irreparable injury. Notably, the Tenth Circuit did not address the merits of the State’s challenge to the NWPR.
Additionally, prior to the Tenth Circuit’s ruling, EPA and the Army Corps of Engineers had requested the court hold the appeal in abeyance for 60 days in light of the new leadership at the agencies following the election of President Biden. The court denied the request and issued its ruling lifting the preliminary injunction the following day. The Biden Administration has indicated it is reviewing the NWPR and may want to make changes to broaden the definition of “Waters of the United States” once again. If that is the case, the agencies may look to settle the Colorado case and other similar litigation with a promise of changes to come.
Like millions of people from around the globe, I watched the images of coup-pawns invading the U.S. Capitol on Jan. 6 with shock, rage, and sadness. But, like many others, I wasn’t surprised. After all, almost exactly five years earlier we had been transfixed and alarmed by another violent attack on an American institution, the occupation of the Malheur National Wildlife Refuge in Oregon by Sagebrush Insurgents. The Center for Western Priorities, an environmental group, aptly called Malheur a “dress rehearsal for what we saw at the Capitol.”
Malheur, meanwhile, was the culmination of what my colleagues and I at High Country News coined the Sagebrush Insurgency, a more violent remake of the seventies-era Sagebrush Rebellion, a movement focused on transferring public lands to state and private hands, that rose up largely in reaction to tightening environmental regulations on public lands.
So it makes sense that observers are now tracing the roots of the Capitol attack to Malheur and then back to the Sagebrush Rebellion. But to find the true antecedent to the recent insurgency, which was initially sparked by the election of Barack Obama to the presidency, one needn’t go back so far. In the late 1980s, another anti-environmental regulation movement known as Wise Use arose from the Sagebrush Rebellion’s ashes. Wise Use would turn out to be more radical, insidious, and ultimately more influential than its more glamorously named predecessor. And today’s right-wing extremist movements reverberate with echoes from Wise Use and its concurrent cousins the Patriot and Militia movements.
In the late 1980s, as President Ronald Reagan finished his second term and the Cold War neared its end, a right-wing, nationalist furor fulminated in the Heartland. Billboards sprouted along rural roadsides warning of black United Nations helicopters imposing a New World Order on the nation. And in Reno, Nevada, timber lobbyist and co-founder of the Center for Defense of Free Enterprise, Ron Arnold, held the inaugural Wise Use conference featuring sponsors such as Exxon, the National Rifle Association, Boise Cascade Corporation, the Mountain States Legal Foundation, and several cattlemen’s and motorized-recreation organizations.
While the Sagebrush Rebellion had been a direct reaction to the tightening of regulations on public lands and the relatively green ethos of President Jimmy Carter, Wise Use had no clear catalyst. Reagan, after all, had opened up the lands to exploitation once again, and his vice-president, not exactly a liberal, took over from him. Instead, it appears that the movement was sparked by a myriad of causes, one of which was Reaganism, although they would never admit to it. Reagan’s mission was to dismantle the framework created by the New Deal, a framework that protected workers’ rights, staved off extreme wealth-inequality with progressive taxation, and built up a strong middle-class. Reagan took the shame out of unbridled greed and let corporations run rampant with the promise that all that wealth would trickle down to the working classes. It did not, and the very farmers, miners, ranchers, and roughnecks who had sought salvation in Reagan’s laissez faire public lands policies instead were dealt damnation from his free-marketeer ways.
During Reagan’s two terms: Carter-era subsidies for oil shale production ended, triggering a deep recession in the Interior West. The oil boom spurred by energy crises busted, ending—for the time being—Denver’s Dynasty period. Metal mining went global, depressing prices in the U.S. and forcing the closure of numerous Western mines. The uranium mining industry in the West was diminished by Three Mile Island’s then Chernobyl’s impact on the nuclear power industry, followed by the end of the arms race. And the Farm Crisis ravaged agricultural communities everywhere. The middle class was hollowed out while a guy named Donald Trump became a celebrity simply by flaunting his wealth. Reagan’s policies aren’t responsible for all of this, but they did weaken the safety nets that should have caught these people when they were in trouble. Instead, the nets failed, and widespread economic malaise among the working class oozed across the land, spurring resentment that the Wise Use, Patriot, and Militia leaders seized upon to fuel their cause.
Colorado Governor Richard Lamm once called the Sagebrush Rebellion a “murky fusion of idealism and greed” and a “movement of confusion and hysteria.” Wise Use had the fusion of idealism and greed part down, but it was anything but confused, and was more focused, more radical, more sinister, and ultimately more influential than its predecessor. Like Sagebrush Rebels, Wise Users were looking to get out from the yoke of environmental regulations on public lands. But the adherents of the latter campaign also saw themselves as soldiers in a culture war, and their credo carried more than a whiff of evangelical Christianity. The federal government and environmentalists weren’t just a threat to their profits and occupations, but to their “heritage” and “civilization.” Arnold summed up his crusade’s Western civilization-centric ideology in a 1993 speech:
“I see environmentalism as the destroyer of the economy, as the destroyer of material well being—as the destroyer of industrial civilization—as the destroyer of individual liberties and civil rights. For those reasons, I fight against environmentalism as a matter of principle, as a matter of ethics, as a matter of survival. The same reasons for which I see environmentalists fighting against industrial civilization.”
Wise Use put a nifty little twist on the land-transfer ethos of the Sagebrush Rebels: Instead of focusing on transferring public lands into private hands, they would extend private property rights—for livestock operators, corporations, and counties—to the public lands. It was a brilliant idea, really, because it essentially privatized public land without the need for politically untenable land transfers. One of the leading practitioners of this notion was Karen Budd-Falen, a Wyoming-based attorney and alumna of both the Mountain States Legal Foundation and James Watt’s Interior Department, who argued that public land grazing leases bestowed private property rights on the lessee.
Budd-Falen was instrumental in crafting a slew of ordinances and a land-use plan for Catron County, New Mexico, declaring county authority over federally managed lands and, specifically, grazing allotments. The ordinances were “… about the legal authority of county governments and the legal rights of local citizens as regards the use of federal and state lands.” They were intended to preserve the “customs and culture” of the rural West—by which they apparently meant only the predominantly white, conservative, Euro-American settler-colonial culture and customs, with a big dose of corporate influence thrown into the mix. And the Catron County commissioners were ready to turn to violence and even civil war to stop, in the words of the ordinance, “federal and state agents {who} threaten the life, liberty, and happiness of the people of Catron County … and present danger to the land and livelihood of every man, woman, and child.” The Utah-based National Federal Lands Conference, launched in the late 1980s by Sagebrush Rebel and military-surplus-peddler Bert Smith, boiler-plated the ordinances and tried to sell them to other counties around the rural West.
Rising up alongside Wise Use was the Patriot/Militia movement. Whereas Wise Use was worried about the BLM coming after “their” lands, the Patriots were more concerned about the IRS or the ATF or the United Nations coming for their money and their guns (in black helicopters, of course). While the details of their crusades may have differed, the two movements shared followers, philosophies, and ideological roots.
One of those shared beliefs was the creed of county supremacy over the states and feds and that the county sheriff is the ultimate law enforcement authority. A prominent teacher of this philosophy was W. Cleon Skousen, an extreme right-wing author, Mormon theologian, and founder of the National Center for Constitutional Studies, née the Freeman Institute, known for its best-selling pocket-size versions of the U.S. Constitution. Skousen’s influence—indeed, his exact words—can be found in the Catron County ordinances, and Skousen and Bert Smith were contemporaries and collaborators. Skousen was also friends and ideological twins with Ezra Taft Benson, the president of the Church of Jesus Christ of Latter-day Saints who played a leading role in steering the Church from its collectivist roots onto a right-wing course.
Skousen, a former FBI agent and Salt Lake City police chief, gave talks to Rotary Clubs and other groups and taught classes to police officers. One of his students was a man named Richard Mack. Mack grew up in southern Arizona in a conservative Mormon family, graduated from Brigham Young University, then joined the Provo, Utah, police force in the 1980s. While he was a police officer, Mack attended one of Skousen’s classes in which he melded constitutional law with Mormon doctrine. Mack became a Skousen-convert and soon went back to Arizona to practice his new creed and where he was elected sheriff of Graham County in 1988 and was re-elected in 1992.
The 1992 standoff at Ruby Ridge in Idaho, followed by Bill Clinton’s election to the presidency and his appointments of Janet Reno as Attorney General and Bruce Babbitt as Interior Secretary, was akin to throwing gasoline on the Patriot-Wise Use fire. The reactionary conflagration was further inflamed by the 1993 Waco fiasco and the passage of the Brady Handgun Violence Prevention Act, requiring people purchasing firearms to get background checks. Among other things, the Act charged local law enforcement with conducting the checks until a federal system was set up. That provided an opening into which then-sheriff Mack could step and propel himself into the glow of the inferno that was whipping across America.
When the Brady Bill was passed, Mack, with backing from the National Rifle Association, joined up with other county sheriffs to sue the federal government over the background-check provision, and ultimately won a 5-4 ruling by the Supreme Court. Mack’s willingness to stand up to the federal government made him an instant folk hero among the anti-government factions (though he lost re-election in 1996) and he was soon headlining Patriot gatherings, railing at Clinton and his attorney general, Janet Reno, and he co-wrote a book with Randy Weaver, the man at the center of the Ruby Ridge shootout.
Meanwhile, prominent Wise Use leaders took pains to distance themselves from the Patriot movement’s more violent elements, while at the same time espousing identical ideologies. The National Federal Lands Conference’s Federal Land Update, edited for a time by Wayne Hage, the rancher who became famous for doing battle with the federal government, regularly ran rants against the New World Order and gun control legislation. In 1994 the Update ran a long article touting the “need for the Militia in America.” That same year, Helen Chenoweth—a staunch Republican, Sagebrush Rebel (she held “endangered salmon bakes” to piss off the greens), and an early Wise User—was elected to represent Idaho in Congress. Chenoweth, who would go on to marry Hage, claimed that U.S. Fish and Wildlife officers were utilizing black helicopters to enforce the Endangered Species Act and that white, Anglo-Saxon males were the real endangered species. Even after a militia-follower named Timothy McVeigh blew up a federal building in Oklahoma City, killing 167 people, Chenoweth told a newspaper reporter that she would not condemn militias and that “public policies may be pushing people too far,” and therefore were partially responsible for the bloodshed.
After George W. Bush was elected president he assembled an Interior Department staff that resembled the attendance roster for a petroleum association or Wise Use conference. It was led by Gale Norton, a disciple of James Watt’s and alumna of the Mountain States Legal Foundation, the litigating arm of the Sagebrush Rebels and then the Wise Users. Also on staff were J. Steven Griles, a lobbyist for energy companies; Rejane Burton, the former vice-president of an oil and gas exploration company; and David Bernhardt, a lobbyist for the extractive industry.
Naturally, that played out on the public lands. During Norton’s years in Interior, the BLM issued drilling permits at a record pace. Norton favored drilling in the Arctic National Wildlife Refuge, voided critical habitat on millions of acres, increased the number of snowmobiles in Yellowstone, and so on. Meanwhile, the Interior Department and its assorted agencies fell into a veritable orgy of ethical lapses, federal coffers were deprived of oil and gas royalties, fragile species denied protection, and industry was given yet more power to wreck public land in the name of greed.
With so many Wise Users in the government, the reactionary movement had nothing to push back against, and therefore lost a lot of steam. The same went for the Patriot movement. Mack’s pulpit dissolved as well and he became a used car salesman. But the movements were not dead, they were simply dormant, awaiting a new force against which to react and awaken them from their slumber. And that force arrived in the form of the 2008 election of President Barack Obama.
“What if the elitists in power also used their paid political hacks to manipulate the voting process? We do know that ANY electronic voting machine can be rigged to make sure that only the elitist chosen candidates will win. That’s when it’s time for an alert and vigilant militia to be on guard. Don’t those in power, the elitists, realize that if they continue in their ways there could be some dire consequences?”
That may sound like a rant from some Proud Boy’s Parler post, or—if it had more grammatical errors—President Donald Trump’s Twitter feed, in the days leading up to the 2020 election. In fact, these words were published in a 1994 article in the Federal Land Update, the Wise Use movement’s rag. The stolen-election trope that Trump and his followers have been spewing for months is just one of many current-day echoes of the Wise Use era. They are reverberating everywhere, whether it’s among the Tea Party or the Oath Keepers or the III-percenters or the Sagebrush Insurgency. Some examples:
W. Cleon Skousen: Skousen died in 2006, but his legacy lives on. Following Obama’s election, right-wing commentator Glenn Beck began touting Skousen’s 1981 tome, The Five Thousand Year Leap. A re-issued version sold hundreds of thousands of copies and came to be known as the Tea Party’s “bible.” Meanwhile, the Bundys are often seen carrying the pocket-sized constitutions published by Skousen’s NCCS in, well, their pockets. At the 2014 ATV-protest down Recapture Canyon in southeast Utah, led by Neo-Sagebrush Rebel and Wise User Phil Lyman, Ryan Bundy himself handed me one of these booklets, peppered with Scripture. Also at the event were a number of self-proclaimed militia-men.
“Sheriff” Richard Mack: Skousen-acolyte Mack was so distraught by Obama’s election that he wrote a book. The County Sheriff: America’s Last Hope, published in 2009, argues that the sheriff is the ultimate law enforcement authority and thus the “last line of defense” shielding individual liberties from out-of-control federal bureaucrats. Mack then launched the Constitutional Sheriffs and Police Officers Association. The organization’s 2012 conference attendance roster included Bert Smith, the Wise Use leader. Smith, who became wealthy from his giant military surplus business in Ogden, Utah, had provided seed money for the CSPOA and for the American Lands Council, created that year by Utah State Rep. Ken Ivory to push for transferring public lands to the states, counties, and private entities. Also speaking was Tom DeWeese, president of the American Policy Center, known for spreading fears that the United Nations, under Agenda 21, is taking over the world via bike paths and public transit, and Joe Arpaio, the notorious sheriff of Maricopa County, Arizona, whom Mack praised for launching an investigation into the validity of Obama’s birth certificate. Ivory gave a rousing speech at the September gathering about the “revolution of ideologies” in which he and the sheriffs were engaged. Mack would go on to lend support to Cliven Bundy during the Bunkerville standoff in 2014 and was a part of the 2016 protest against the prosecution of Wise Use rancher Dwight Hammond, a protest that would culminate in the Malheur takeover.
Bert Smith: Until his death in 2016, Smith remained active in the new iterations of the Sagebrush Rebellion/Wise Use. After the Bunkerville fiasco, Smith penned a piece on the Bundy Ranch blog in which he called Cliven Bundy a “hero of the range livestock operator on public land,” who had “a sacred God-given right of unalienable rights, private property rights” to graze his cows on the American public’s land.
Karen Budd-Falen: Falen emerged from Wise Use as a leading private property rights attorney, often fighting against the federal government, and gained new prominence in the latest Sagebrush Insurgency. She once represented Cliven Bundy. In 2011, she told a gathering of county sheriffs in Northern California that “the foundation for every single right in this country, our freedom of speech, our freedom to vote, our freedom to petition, is all based on the right of ownership of private property.” Trump appointed her to be deputy Interior solicitor for wildlife and parks, an obscure but powerful position, in 2018.
William Perry Pendley: Pendley worked under Sagebrush Rebel James Watt in Reagan’s Interior Department then became president of Mountain States Legal Foundation—the legal arm of Wise Use—just as the Wise Use movement was getting going. He stayed with the organization until just months before he went to work for the Trump administration. In 2019 he was named acting director of the BLM; in 2020 a judge found that he had been serving unlawfully.
Rep. Helen Chenoweth-Hage: Chenoweth-Hage died in 2006, but her firebrand, gun-loving, lib-hating, militia-sympathizing, conspiracy-theory-flinging spirit lives on in the likes of former Alaska Governor Sarah Palin and Rep. Lauren Boebert, who was recently elected to represent Colorado’s third congressional district. Boebert, who tweeted incendiary messages as the Capitol was being invaded, seems to be emerging as the leader of what I call the #ObnoxiousCaucus, which also includes Westerners such as Republican Rep. Paul Gosar, from Arizona.
Fake Victimhood: Both Wise Use and the current right-wing movements have portrayed themselves and their culture, customs, and heritage, as the victims of persecution and even genocide by the “elitists,” the environmentalists, cancel culture, liberals, the deep state, black helicopters, Hugo Chavez, and rigged voting machines. By falsely portraying themselves as the little guys getting beaten up by bullies—despite the fact that they are almost invariably members of the dominant power structure and backed by corporations and wealthy benefactors—they can justify responding with violence.
Now the question is whether these echoes will be amplified in reaction to a Biden-Harris administration, or whether widespread anger and alarm in response to the Capitol invasion will silence them. Will a Biden administration rollback of Trump’s environmental rollbacks and restoration of Bears Ears and Grand Staircase-Escalante National Monuments spark a new backlash? Or will the reactionaries finally learn that these protections aren’t an existential threat to their “way of life?”
It’s worth noting that Western politicians who have adhered to the Wise Use/Sagebrush Rebel philosophies in the past are now emerging as some of the few Republicans willing to stand up to Trump, including: Sen. Mitt Romney, of Utah, Sen. Lisa Murkowski, of Alaska, and Rep. Liz Cheney, of Wyoming.
It’s not a lot, and it may be too little too late, but it does provide a small glimmer of hope.
Here’s the release from Governor Polis’ office (Chris Arend):
The State of Colorado, through the Department of Natural Resources, filed a complaint today in Colorado federal court challenging the approval of the U.S. Department of Interior, Bureau of Land Management’s (BLM) Resource Management Plan (RMP) for the Uncompahgre Field Office. The Uncompahgre RMP, finalized in April 2020, governs mineral extraction and other land use activities on federal lands spanning five counties in southwestern Colorado. The Colorado Department of Natural Resources (DNR) protested the proposed RMP in July 2019, and Governor Polis also submitted inconsistencies between the RMP and state policies, but those concerns were dismissed by the BLM in the final plan.
The State’s complaint details how William Perry Pendley, a BLM deputy director, violated the Federal Vacancies Reform Act (FVRA) when he improperly exercised the authority to resolve DNR’s protest while unlawfully occupying the role of the agency’s acting director. Resolving such protests is a responsibility reserved exclusively to the Secretary of Interior, a U.S. Senate-approved BLM Director, or a legitimate acting director nominated by the President.
Mr. Pendley’s appointment by Secretary David Bernhardt was never reviewed by the U.S. Senate and had extended beyond the legal 90-day limit for temporary officials at the time when the plan was finalized. Colorado’s lawsuit follows a recent ruling in a federal lawsuit in Montana that invalidated two RMPs and an RMP amendment that were approved based on a similar unlawful protest resolution by Mr. Pendley.
“The unfortunate fact is that if the Trump Administration had followed the law in appointing a Senate-confirmed nominee to lead the U.S. Bureau of Land Management, Colorado and other western states would not be in this predicament,” said Governor Jared Polis. “It is now Colorado communities and the State of Colorado who face unnecessary uncertainty and potential impacts to local recreation and outdoor industry jobs.”
“The Department of Natural Resources raised legitimate concerns in its protest that the final Uncompahgre RMP runs counter to Colorado’s goals to protect sensitive habitat for big game species and other wildlife, and reduce greenhouse gas emissions,” said Dan Gibbs, Executive Director, Colorado Department of Natural Resources. “The complaint provides facts demonstrating that these concerns were not addressed appropriately, and the approval of the plan by Pendley’s BLM was invalid. We are hopeful that the uncertainty caused by the questionable appointment can be clarified by the court so that Western Slope and Southwest Colorado communities can reliably plan for the future.”
Attorney General Phil Weiser said: “In Colorado, our public lands are critical to our quality of life and economy. Over the years, the Bureau of Land Management has taken a series of illegal actions in developing the resource management plan that harms and conflicts with our state’s policies. We are bringing this lawsuit to address those harms and safeguard public lands and wildlife in Colorado.”
The state’s argument that Pendley, the BLM’s “acting director,” did not have the authority to approve anything mirrors a federal case in Montana that overturned three resource-management plans.
Gov. Jared Polis didn’t like the Bureau of Land Management’s long-range management plan for the Uncompahgre Plateau, saying the expansion of oil drilling in the region did not jibe with state laws and regulations protecting water, air, wildlife and recreation.
And because the agency did not resolve those issues in its Resource Management Plan, Polis on Friday sued the BLM, as well as agency bureaucrat William Perry Pendley and Interior Secretary David Bernhardt, asking a federal judge to overturn the Resource Management Plan (or RMP) for nearly 680,000 acres of federal land in western Colorado.
The state is following the lead of Montana, arguing not just that the management plan conflicts with state laws, but that Pendley, who was never formally approved by the U.S. Senate as director of the BLM, did not have the authority to approve the RMP in April.
“The unfortunate fact is that if the Trump Administration had followed the law in appointing a Senate-confirmed nominee to lead the U.S. Bureau of Land Management, Colorado and other western states would not be in this predicament,” said Polis in a statement announcing the lawsuit. “It is now Colorado communities and the state of Colorado who face unnecessary uncertainty and potential impacts to local recreation and outdoor industry jobs.”
The final plan approved by Pendley was the first resource management plan approved under the Trump Administration’s “energy dominance” agenda to bolster domestic oil, gas and coal industries. It did not limit drilling in the North Fork Valley and expanded energy development across 675,800 acres of land and 971,200 acres of mineral estate in Montrose, Gunnison, Ouray, Mesa, Delta and San Miguel counties. And it did not weigh the state’s concerns about energy projects potentially injuring wildlife, habitat and air quality.
The preferred plan that was on track in the fall of 2019 — crafted after many years of BLM meetings and work with local communities — was replaced by a new Trump Administration alternative in the spring of 2020 that identified energy and mineral development as key planning issues alongside reducing regulatory burdens for extractive industries and economic development. The BLM said the plan would contribute $2.5 billion in economic activity to the region and support 950 jobs a year for the next two decades.
Earlier this month the BLM approved two oil and gas drilling projects in the North Fork Valley that allow up to 226 wells.
Colorado’s lawsuit, being handled by Colorado Attorney General Phil Weiser, says the plan’s conflicts with state laws were never resolved, so the approval should be overturned.
As the world reacts to the Jan. 6 armed attack on the U.S. Capitol encouraged by President Donald Trump, many Americans are wondering what happens next. Members of Congress, high-level officials and even major corporations and business groups have called for Trump’s removal from office.
Informal actions like this may continue, including House Speaker Nancy Pelosi’s reported request that Gen. Mark Milley, chairman of the Joint Chiefs of Staff, restrict Trump’s ability to use the nuclear codes. But political leaders are considering more formal options as well. They have two ways to handle it: impeachment and the 25th Amendment.
Article II of the U.S. Constitution authorizes Congress to impeach and remove the president – and other federal officials – from office for “Treason, Bribery, or other high Crimes and Misdemeanors.” The founders included this provision as a tool to punish a president for misconduct and abuses of power. It’s one of the many ways that Congress keeps the executive branch in check.
Impeachment proceedings begin in the House of Representatives. A member of the House files a resolution for impeachment. The resolution goes to the House Judiciary Committee, which usually holds a hearing to evaluate the resolution. If the House Judiciary Committee thinks impeachment is proper, its members draft and vote on articles of impeachment. Once the House Judiciary Committee approves articles of impeachment, they go to the full House for a vote.
If the House of Representatives impeaches a president or another official, the action then moves to the Senate. Under the Constitution’s Article I, the Senate has the responsibility for determining whether to remove the person from office. Normally, the Senate holds a trial, but it controls its procedures and can limit the process if it wants.
Ultimately, the Senate votes on whether to remove the president – which requires a two-thirds majority, or 67 senators. To date, the Senate has never voted to remove a president from office, although it almost did in 1868, when President Andrew Johnson escaped removal from office by one vote.
The Senate also has the power to disqualify a public official from holding public office in the future. If the person is convicted and removed from office, only then can senators vote on whether to permanently disqualify that person from ever again holding federal office. Members of Congress proposing the impeachment of Trump have promised to include a provision to do so. A simple majority vote is all that’s required then.
The Constitution’s 25th Amendment provides a second way for high-level officials to remove a president from office. It was ratified in 1967 in the wake of the 1963 assassination of John F. Kennedy – who was succeeded by Lyndon Johnson, who had already had one heart attack – as well as delayed disclosure of health problems experienced by Kennedy’s predecessor, Dwight Eisenhower.
It has never been invoked against a president’s will, and has been used only to temporarily transfer power, such as when a president is undergoing a medical procedure requiring anesthesia.
Section 4 of the 25th Amendment authorizes high-level officials – either the vice president and a majority of the Cabinet or another body designated by Congress – to remove a president from office without his consent when he is “unable to discharge the powers and duties of his office.” Congress has yet to designate an alternative body, and scholars disagree over the role, if any, of acting Cabinet officials.
The high-level officials simply send a written declaration to the president pro tempore of the Senate – the longest-serving senator from the majority party – and the speaker of the House of Representatives, stating that the president is unable to discharge the powers and duties of his office. The vice president immediately assumes the powers and duties of the president.
The president, however, can fight back. He or she can seek to resume their powers by informing congressional leadership in writing that they are fit for office and no disability exists. But the president doesn’t get the presidency back just by saying this.
The high-level officials originally questioning the president’s fitness then have four days to decide whether they disagree with the president. If they notify congressional leadership that they disagree, the vice president retains control and Congress has 48 hours to convene to discuss the issue. Congress has 21 days to debate and vote on whether the president is unfit or unable to resume his powers.
The vice president remains the acting president until Congress votes or the 21-day period lapses. A two-thirds majority vote by members of both houses of Congress is required to remove the president from office. If that vote fails or does not happen within the 21-day period, the president resumes his powers immediately.
Protections for endangered species, disaster assistance and conservation were all targets of the most recent round of attacks on the environment.
This holiday season just about everything was different. Vacations were postponed. Parties and family get-togethers were canceled or moved online as folks hunkered down at the request of public-health officials. But one thing `continued as usual: President Trump’s attacks on the environment.
In the weeks following the Nov. 3 election, Trump’s team continued its unprecedented onslaught on environmental regulations, with nearly a dozen new rollbacks or threats to public health, wildlife, clean air, public lands and the climate.
As the New Year approached, the assaults didn’t let up. Here are some of the most recent:
1. Cutting Disaster Funding
Despite a record-tying 16 weather and climate disasters topping $1 billion each this year in the United States, the Federal Emergency Management Agency proposed a plan to curtail federal disaster aid.
It would affect wealthier states the most, requiring that they have higher levels of damage than less wealthy states to get federal assistance.
The proposal, announced on Dec. 14, “would be one of the most significant revisions of federal disaster policy in nearly a half-century and comes as states grapple with massive fiscal shortfalls due to the pandemic,” E&E News reported.
The new rule is now open for public comments until Feb. 12 and would fall under the incoming Biden administration to move it forward — if it wishes.
2. Efficiency Rollbacks
The Department of Energy took two steps back on Dec. 15., finalizing new rules that ease efficiency requirements for some fixtures and appliances.
The move comes a year after Trump complained that showerheads don’t have enough flow for him to wash his hair and toilets need to be flushed 10 or 15 times, which earned him a hearty amount of ridicule on social media.
But his new rules are no laughing matter when it comes to conservation and efficiency.
One of the rules would roll back a water-efficiency requirement for showerheads put in place by Congress in 1992 during the George H.W. Bush administration. The other would allow for some new washers and dryers to use more water and energy.
Both would amount to more needlessly wasted energy, water and money.
3. No Help for Monarchs
Photograph of a Male Monarch Butterfly. Photo by and (c)2007 Derek Ramsey (Ram-Man)
Monarch butterflies on both the east and west coasts are in perilous decline, with populations falling 80% or more. So it made sense that on Dec. 15 the U.S. Fish and Wildlife Service ruled that the butterflies were in need of protection under the Endangered Species Act. But the agency unfortunately decided those protections wouldn’t be immediately forthcoming.
Monarchs were essentially told to get in line behind other species awaiting protection — and there are a lot of those these days. “The Trump administration has listed only 25 species — fewer than any since the [Endangered Species] act took effect in 1973,” the AP reported. “The Obama administration added 360.”
The current plan proposes delaying action to list monarchs until 2024, which would then be followed by another year of public comment and development of the final rule: time the species may not have.
4. Pardons
In late December Trump issued dozens of pardons and commutations in what The Guardian called “another audacious application of presidential power to reward loyalists.” The list included predictable names of political allies like Paul Manafort and Roger Stone, but among them was a pardon for Utah state Rep. Phil Lyman.
Lyman has railed against the federal management of public lands and in 2015, when he was serving as a San Juan County commissioner, he led 50 all-terrain vehicles on a ride through Utah’s Recapture Canyon. The area had been closed to motorized vehicle traffic to protect archeological sites. The illegal stunt earned him 5 days in jail and a $96,000 fine.
5. Airplane Emissions
On Dec. 28 the EPA finalized the first rule regulating greenhouse gas emissions from commercial airplanes. But hold your applause: The historic step isn’t likely to amount to much.
The agency said that all the planes likely to be affected by the rule would be compliant by the date required, and therefore, EPA doesn’t think there’ll be any emission reductions associated with the greenhouse gas regulations or that they’ll help spur technical improvements that wouldn’t already have happened.
This “do-nothing rule,” as environmental groups have dubbed it, may be hard for the Biden administration to quickly undo as the EPA has decided to forgo the usual 30-day waiting period between the publication of the final rule and its implementation.
“The agency has used the procedural tactic — which is legally allowed with ‘good cause’ — in recent weeks in an apparent effort to obstruct the incoming Biden administration,” E&E News reported.
6. Endangered Species Act
The outgoing Trump administration took two more swings at the Endangered Species Act, which it has worked to undo in the last four years.
On Dec. 15 the administration finalized a rule that narrowed the definition of habitat to only areas that currently support a species. This would eliminate the government’s ability to protect areas that could help support species in the future and areas previously occupied by the species. The move limits the tools available to protect endangered species, many of which have seen their historic range greatly diminished by development, agriculture and now climate change.
Two days later the Fish and Wildlife Service undermined the law again with a rule that lets money trump science. The change would allow the agency to omit areas from critical habitat designation if a review of the economic costs to industry outweigh the ecological benefits.
Tara Lohan is deputy editor of The Revelator and has worked for more than a decade as a digital editor and environmental journalist focused on the intersections of energy, water and climate. Her work has been published by The Nation, American Prospect, High Country News, Grist, Pacific Standard and others. She is the editor of two books on the global water crisis.
The fires burning in the American West were the prompt. Turning to the president, Wallace asked Trump what he believed about climate science and what he would do in the next four years to confront carbon pollution. Trump, at first, demurred.
“I want crystal clean water and air,” Trump responded. Then he pivoted to a familiar talking point: railing against cluttered forests as the cause of wildfires in California and other western states.
The initial line — the desire for crystal clean water — is one that the president repeats frequently, even dating to his 2016 presidential campaign. Immaculate water, he has also said. Clear water. Beautiful water. But the focus on appearances is superficial, according to a number of water advocates and analysts. Revisions to environmental rules that the administration has pursued during the first term of the Trump presidency will be detrimental to the nation’s waters, they said.
“President Trump loves to say that he wants crystal clear water,” Bob Irvin, president and chief executive of the conservation group American Rivers, told Circle of Blue. “But his administration has adopted policies that will result in dirtier water across the country.”
Irvin, an environmental lawyer by training, has worked in Washington D.C. for more than three decades, starting out as a trial attorney in the Justice Department during the Reagan administration. He was senior counsel for fish and wildlife for the Senate Committee on Environment and Public Works. He worked for conservation organizations like the World Wildlife Fund and the National Wildlife Federation. His career has spanned Republican and Democratic administrations and there was always at least some common ground for environmental priorities, he reflected.
Not during the Trump administration, though. Irvin could not name any beneficial administration policy for waterways. “It is stunning for me to say that,” he said.
Others interviewed for this story were not as absolute, but they echoed, to varying degrees, Irvin’s thoughts: “This administration has been unrelentingly hostile to the idea of conservation and environmental protection, and has been single-minded in its determination to undermine that protection.”
[…]
Failure to secure a big win for infrastructure was surpassed by an agenda to undo environmental protections.
First under Scott Pruitt and currently led by Andrew Wheeler, who lobbied for fossil fuel industries he now regulates, the U.S. Environmental Protection Agency took the reins in the administration’s plan to weaken federal authority and relinquish power to the states.
Like his boss, Wheeler made public statements that lifted water to a place of prominence.
“My frustration with the current dialogue around environmental issues is that water issues often take a backseat,” Wheeler told the audience at the Wilson Center on March 20, 2019, in an event to mark World Water Day. “It’s time to change that.”
And yet, many critics and analysts say that the administration did not change that. Regulatory rollbacks not only at the EPA but from the Army Corps of Engineers, Bureau of Reclamation, and the Department of Energy leave the country’s waters more vulnerable to pollution and development, they say. States, which are enduring budget cuts to their environmental units, are not in a position to be a backstop, argues Eric Schaeffer, executive director of the Environmental Integrity Project.
“The assumption that states are going to come in and fill the gap is not warranted,” Schaeffer told Circle of Blue. Schaeffer was the director of EPA’s Office of Civil Enforcement from 1997 to 2002. His group released a study showing that 31 states reduced funding for state pollution control agencies from 2008 to 2018. “When EPA leaves the field, it leaves a lot of work undone,” he said.
The list of places where EPA has left the field or stepped back from it is long. The administration gave coal power plants more time to close unlined waste pits and relaxed standards for pollutants in power plant wastewater that is discharged to rivers and lakes. It narrowed the scope of state reviews of pollution impacts under the Clean Water Act. It withdrew a proposal that would have required mining companies to provide more financial assurance that they could clean up future water contamination. Reversing an Obama-era decision, it decided not to regulate perchlorate in drinking water. Draft rules for lead in drinking water appear to give utilities more time to replace lead service lines.
The U.S. Forest Service, for its part, overturned an Obama-era prohibition on mining leases in about 234,000 acres of Superior National Forest in northern Minnesota. The administration is proceeding with an environmental review of the contested Twin Metals mine, a proposed copper-nickel mine that would be located in the national forest some five miles from Boundary Waters Canoe Area Wilderness.
The Bureau of Reclamation, meanwhile, has sought to increase the height of Shasta Dam over the objections of the state of California and the Winnemem Wintu tribe, which do not want higher waters to submerge salmon habitat and cultural sites along the McCloud River. And the Bureau is carrying out an executive order to maximize water exports from the Sacramento-San Joaquin delta.
Laura Ziemer, the senior counsel and water policy advisor for Trout Unlimited, said that there is a lot of opportunity for the Bureau of Reclamation to invest in drought and climate preparedness in the western states through certain forms of natural water storage and irrigation efficiency. But projects like the Shasta Dam raise are not that…
Rewriting WOTUS
Out of all these deregulatory actions, one stood out. Most people interviewed for this story singled out the administration’s changes to the scope of the Clean Water Act — the definition of what counts as a water of the United States, or WOTUS — as the most damaging policy for water.
“It’s going to have consequences that are irreversible and far-reaching,” Kyla Bennett, New England director and science policy director at Public Employees for Environmental Responsibility, told Circle of Blue.
Photo credit from report “A Preliminary Evaluation of Seasonal Water Levels Necessary to Sustain Mount Emmons Fen: Grand Mesa, Uncompahgre and Gunnison National Forests,” David J. Cooper, Ph.D, December 2003.
Written by the EPA and Army Corps, the WOTUS rule reduces protections for wetlands and ephemeral streams that only flow after rainfall. Agency staff used national hydrological datasets to calculate that as many as half of the nation’s wetlands and 18 percent of streams would be excluded under the new rule. That means developers will not have to seek permits to fill in wetlands and stream segments that formerly had protection. It also means that requirements to minimize damage and offset unavoidable impacts by restoring wetlands elsewhere have been stricken.
Ziemer noted that western rivers are particularly vulnerable to the removal of protections for ephemeral streams…
Watersheds that are connected from headwater channels to floodplains absorb high flows and retain that water through drought periods. “If we allow all of our hydrologic function to be paved over, we are going to expose ourselves to both flood and drought risk moving forward,” Ziemer said.
The EPA press office declined requests from Circle of Blue for interviews with Wheeler and David Ross, head of the Office of Water. It is the agency’s position that no existing map depicts accurately the boundaries of federal regulatory authority under the Clean Water Act. Several federal agencies are now working to publish such a guidepost.
Tipping the Balance of Power
What is the effect of this overhaul? In most cases, it is too early to say. Narrowing the scope of the Clean Water Act took effect this June for every state but Colorado. “It takes a while between the time you push the lever on a new policy or decision and the time the impacts show up in water quality,” Schaeffer said.
The administration touts other steps it has taken to secure the nation’s water: a national plan to coordinate the reuse of water, orders to speed up reviews and permitting of things like the management plan for federally managed dams on the Columbia River, and formalizing a water “subcabinet” of department heads who will coordinate policy, a determination that it will regulate two toxic PFAS substances in drinking water. FEMA, to the pleasure of green groups, also quietly advanced new guidance that allows greater use of federal flood prevention funds for natural infrastructure such as wetlands.
In general, the administration’s rules have tipped the balance of power to users of water: mining companies, energy developers, farmers, homebuilders. Even as it moves to regulate two PFAS in drinking water, the EPA is allowing the chemical industry to produce and sell new PFAS substances.
Among the president’s most ardent supporters is the American Farm Bureau Federation. Don Parrish, senior director of regulatory relations for the Farm Bureau, told Circle of Blue that the administration has assisted in three ways: collaborating with states on nutrient pollution, encouraging market-based systems for trading pollution credits, and simply listening to farm groups.
“One of our biggest priorities coming into this administration was a more realistic definition of waters of the United States,” Parrish told Circle of Blue. Narrowing the scope of the Clean Water Act accomplished that, Parrish said, though the Farm Bureau did not get everything it wanted in the revised rule.
The Utility Water Act Group, a coalition of energy utilities and industry groups that sued to overturn Obama-era coal ash regulations and to support the Trump administration’s environmental policies, declined to comment for this story.
It’s not just the policies that have drawn ire. The Trump administration has sought to transform the process by which those decisions are made: by sidelining scientific evidence and shrinking the environmental review process.
According to a survey of federal scientists, political appointees in the Trump administration raised barriers to using science in policy decisions. More than 4,200 federal scientists responded to the survey, which was conducted in 2018 by the Union of Concerned Scientists and Iowa State University. Half of respondents agreed or strongly agreed that political considerations outweighed scientific conclusions.
The legacy of these four years is still being written. The administration’s policy changes have fared poorly in court. Many have been overturned because of procedural missteps and hastily written justifications. Other rules like the definition of waters of the United States are in the early stages of litigation.
A healthy constitutional culture, in which the people and their leaders respect the authority of their Constitution, requires a baseline of trust in the government – a baseline that, in the United States, has eroded from 77% in the early 1960s to 17% today.
In the past four years, President Trump has consolidated power to such an extent that the Republican Party has literally declined to adopt a party platform and effectively embraced the president as its alter ego.
But that strategy ultimately failed, because Trump’s populist control did not extend to the federal courts.
Lawyers who helped with Trump campaign lawsuits faced protests, like this one outside Rudy Giuliani’s apartment building in New York. Erik McGregor/LightRocket via Getty Images
Cases need facts
The legal assault on the election was spearheaded by attorneys who were willing to file suits based on unsupported suspicions and beliefs to perpetuate the president’s populist regime by any means necessary. These groundless suspicions and beliefs – bellowed loudly and often by the president and his entourage – may have gotten traction in politics, but they got none in courts of law. The judiciary’s firewall withstood the populist bomb that President Trump detonated.
Apart from the fact that neither the president nor his enthusiasts could threaten the tenure of unelected federal judges who are appointed for life, judges are a different kind of public official, and the lies, bullying and bombast that work well in populist politics fall flat in courts of law.
When judges hear cases, they follow a uniform system of procedural rules that enable them to evaluate the claims that the parties make and amass a body of information on which they rely to determine facts and ascertain truth. It’s a system that has served the judiciary well for generations, and served it well in the postelection cases that the courts decided in recent weeks.
Judges are lawyers who have been steeped in the rule of law for decades. It begins with three years of law school, where they “learn to think like lawyers” and are graded on their command of substantive and procedural law. Upon graduation, they must demonstrate their proficiency in law by passing a bar exam, and then practice law for years and typically decades before ascending the bench.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
These critics, however, miss the mark. Yes, judges are subject to ideological influences in close cases, when the law is subject to conflicting interpretations, and judges tend to favor interpretations that align with their common sense and policy perspective.
But this does not refute Roberts’ point: Federal judges are trained to take law seriously and do their best to uphold the law as they understand it to be written. So when confronted with postelection fraud cases that were not close – that lacked factual allegations essential to proceeding with the case – judges ruled against the president.
As one judge said to Trump campaign lawyers, “Come on now!”
Chief Justice John Roberts, right, once chastised President Trump for saying that judges make rulings based on their politics. Here, the two shake hands at this year’s State of the Union address Feb. 4. Leah Millis-Pool/Getty Images
Facts and truth
Thanks to those judges, the rule of law held firm against a populist assault.
Celebrating the triumph of the rule of law in the courts, however, obscures the reality that innumerable voters, public officials and lawyers who were ostensibly committed to that rule of law stood ready – for the first time in U.S. history – to overturn a presidential election.
In the past, the majority of Americans drew their conclusions from a common body of information received from the same evening news and morning newspapers.
With the explosion of the information age and the decline of traditional media, that common body of information has disappeared, as the marketplace of ideas has been flooded with limitless information, the truth or falsity of which is increasingly difficult to assess. The consequences are voiced by a nihilistic spy in the latest “Call of Duty” video game: “There is no truth – only who you choose to believe.” And this, it would seem, has become the mantra for many public officials and their constituents.
Americans encountered a similar problem once before, during industrialization, when the nation was deluged with a flood of false and misleading information about new drugs, foods and consumer products – a problem that the administrative state ultimately emerged to regulate.
The trouble is that the government can’t regulate the marketplace of ideas the way it does the marketplace of goods and services – the First Amendment won’t allow it. In most cases, the government cannot prohibit you, media outlets or politicians from telling lies.
So the challenge is to reestablish a way to evaluate the reliability of information upon which we must depend for finding facts and ascertaining truth. Because if that can’t be done, the nation’s ability to elect its leaders and govern itself in an orderly and principled way will be lost.
The Constitution is fragile. It works because we the people will it to work, and that will is being tested, perhaps as never before. The judiciary passed its latest test. The American people will be tested again in the years to come – and the future of the democracy hangs in the balance.
Ephemeral streams are streams that do not always flow. They are above the groundwater reservoir and appear after precipitation in the area. Via Socratic.org
From the EHS Daily Advisor (Lisa Whitley Coleman):
In November, the EPA asked the 10th Circuit Court of Appeals in Colorado to restore its definition of waters that are protected by the Clean Water Act (CWA)…
“The territorial seas and traditional navigable waters,”
“Perennial and intermittent tributaries to those waters,”
“Certain lakes, ponds, and impoundments,” and
“Wetlands adjacent to jurisdictional waters.”
The final definition “provides clear exclusions for many water features that traditionally have not been regulated, and defines terms in the regulatory text that have never been defined before,” according to the EPA. “Congress, in the Clean Water Act, explicitly directed the Agencies to protect ‘navigable waters.’ The Navigable Waters Protection Rule regulates the nation’s navigable waters and the core tributary systems that provide perennial or intermittent flow into them.”
In July, final changes to the rule were published by the EPA to implement section 401 of the CWA that many characterized as gutting a 50-year history of state and tribal water quality regulation.
“This section allows states and tribal nations to protect health and human safety within their geographic boundaries by making permitting decisions related to the discharge of waste into state waterways,” according to a press release published by the Washington State Office of the Attorney General. The press release went on to say that the rule would “handicap states’ abilities to regulate water quality.”
In July, Washington Attorney General Bob Ferguson filed suit against the EPA and the Army Corps of Engineers in the U.S. District Court for the Northern District of California. The case is co-led by New York and California and was joined by Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Wisconsin, and the District of Columbia.
The lawsuit alleges that the new rule “unlawfully violates the plain language, intent and established case law interpreting the Clean Water Act.”
“The final rule forces states to issue permits based on an incomplete review of what effects industries will have on waterways,” according to the Washington attorney general’s press release. “States will only be able to consider a narrow range of impacts these projects have on water quality, even when the consequences cause far-reaching and even irreversible environmental damage. The rule also limits the amount of information industry must provide, unreasonably reduces the amount of time states have to make decisions or deny permits and attempts to grant the federal government oversight of projects rather than states.”
Environmental and conservations groups estimate the final rule leaves 50% of U.S. wetlands and millions of miles of streams unprotected, according to the Milwaukee Journal Sentinel…
Colorado
Colorado met with success in the U.S. District Court for the District of Colorado, where an injunction was granted to stop the rule within the state. “The court found that Colorado met the bar for preliminary injunction and agreed to freeze the rule until the litigation plays out,” according to E&E News.
Colorado’s case says the new rule is “significantly narrower” than prior WOTUS definitions and is “inconsistent with case law on the scope of the CWA and abandons the ‘significant nexus’ test laid out in U.S. Supreme Court Justice Anthony Kennedy’s concurring opinion in the 2006 case Rapanos v. United States,” according to Law Week Colorado. “According to this test, wetlands or non-navigable bodies of water fall under the CWA if they ‘significantly affect the chemical, physical and biological integrity of other covered waters more readily understood as ‘navigable.’”
The 10th Circuit convened a remote three-judge panel to hear the EPA’s motion to overturn the injunction, during which Deputy Assistant Attorney General for the U.S. Department of Justice Jonathan Brightbill “argued the rules were narrowed to provide clarity in the wake of three Supreme Court cases.”
“Against this thoughtful interpretation of navigable waters and in light of the Supreme court precedent, including the SWANCC decision which definitively holds there is a stopping point to the term navigable waters short of the Interstate Commerce Clause, Colorado points only to generalized objective provisions of the Clean Water Act,” Brightbill said in a Courthouse News Service article, referring to the 2001 case Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers.
Representing the state of Colorado, State Solicitor General Eric Olson emphasized that important protections are missing from the new WOTUS definition.
Bobby Ray Baldock, senior U.S. Circuit judge, pointed out that Colorado could correct the issue with legislative measures.
“Olson explained that Colorado is one of 48 states that previously relied on the federal permitting system and that the new rule was implemented during a state legislative session shortened by Covid-19,” according to Courthouse News. “We absolutely agree we could put in a regulatory regime that could fill that gap, but we can’t do that in 60 days, which is all that they gave us under the rule,” Olson said.
U.S. Circuit Judge Carolyn McHugh disagreed. “That’s self-inflicted because the Colorado approach has been there will be no dredge-and-fill permits,” McHugh countered, according to Courthouse News. “The [federal] response was you’ve known since the executive order was signed, isn’t that fair notice?”
Coyote Gulch’s Leaf charging in the Town of Kremmling Town Park August 21, 2017.
Here’s the release from the Natural Resources Defense Council (Gina McCarthy):
After 50 years, what does the future of the U.S. Environmental Protection Agency hold?
By a margin of more than 6.2 million votes, Americans elected Joe Biden president, largely on his promise to help unite the country and restore the public’s faith in our democracy.
It’s a tall order, but he can make a good start on both by setting the U.S. Environmental Protection Agency (EPA) back on track. Few arms of the government touch all of us more directly or have suffered more harm under Donald Trump.
It was 50 years ago, on December 2, 1970, when Richard Nixon, a Republican president, established the EPA to protect the public from runaway pollution that damaged our health and put our communities at risk.
Since then, the agency has become the worldwide gold standard for environmental protection, dramatically reducing the air pollution, water contamination, and toxic chemicals that make us sick, even as our economy has nearly quadrupled.
The public benefits have been huge. Reductions in air pollution alone saved Americans up to $3.8 trillion just this year, preventing up to 370,000 premature deaths and more than 30 million lost days of work or school. Those benefits accrue to all of us, Republicans and Democrats alike.
The Trump administration, though, has turned the EPA mission on its ear—protecting polluters, not people.
The administration has tied the agency’s hands, crippled or eliminated commonsense safeguards, curbed enforcement of environmental laws, and turned its back on climate change, the central environmental crisis of our time.
Biden has made it clear that polluters have had their day—every day that Team Trump has been in office. Their time’s up. Biden’s EPA will get back to protecting people and restoring the agency to the mission it was founded on 50 years ago.
That begins with naming what I like to call an “Anthony Fauci of the environment” to head the EPA; someone who, whether they’re a scientist or not, has unassailable credibility among scientists, advocates, and the public.
Much as the Trump administration has put our health at heightened and needless risk by ignoring the science behind the coronavirus pandemic and dismissing experts like Dr. Fauci, it has also recklessly disregarded the truth about environmental hazard and harm.
The next EPA administrator must make it clear from the start that sound science, public health, and the rule of law will guide agency actions and decisions. We need an environmental champion who makes equity a core agency value, listens and learns from public comments and concerns, and puts protecting our people’s health, communities, and future first.
That means taking action on climate change now since the last administration squandered four years we couldn’t afford to lose.
The Biden administration is going to hit the ground running. Biden has named former secretary of state John Kerry to oversee international climate policy; former deputy secretary of state Antony Blinken as Secretary of State; and senior foreign service officer Linda Thomas-Greenfield as U.S. ambassador to the United Nations.
This marks a clear return to U.S. climate leadership, at home and abroad. It puts effective climate action at the top of the agenda. And it sends the message to our friends and allies around the world that they can once again take us at our word and depend on our partnership in the vital effort to confront a global crisis that demands global solutions.
That’s 180 degrees from where we’ve spent the past four years.
The Trump administration rolled back vital standards and rules the EPA had put in place to clean up the cars, trucks, and dirty power plants that generate nearly two-thirds of the U.S. carbon pollution that’s driving climate change. We need a new generation of even more ambitious standards now to cut our carbon footprint in half by 2030, as the science tells us we must.
That’s how EPA actions can support the $2 trillion Biden has pledged to invest in energy efficiency, electric vehicles, wind and solar power, modern electricity distribution and storage, and other clean energy infrastructure. Congress should work with Biden from day one to make a substantial down payment on this investment as part of a broader economic recovery package.
When the pandemic hit, there were 3.4 million Americans working in the clean energy sector, making 25 percent more, on average, than the national median wage. Clean energy investment can help to ensure the strong, durable recovery we need, creating millions more good jobs in every community in the country.
Biden has pledged to structure public investment in clean energy in a way that protects low-income communities, people of color, tribal nations, and other vulnerable groups from climate impacts that fall disproportionately on those least able to cope with them. Under his plan, these groups will also receive the benefits of clean energy—better health, improved quality of life, and good jobs—by receiving at least 40 percent of clean energy investment.
Hand in glove with clean energy is the need to conserve more of our public lands and oceans, and to reinstate clean water protections the Trump administration dismantled. By strengthening wetlands, forests, and croplands, we can enhance their natural capacity to absorb carbon from the atmosphere and lock it away in healthy soils.
Fifty years after the EPA was born, we are positioned to restore the agency to being the gold standard for public health and environmental protection, as it was created to be. We have elected a new president with the strongest plan we’ve ever seen to fight the climate crisis in a way that helps to build a healthier, more prosperous, more equitable future for everyone.
This plan shouldn’t divide us into red state or blue. It should unite us, as American people, confident in the road ahead and sure of our ability to travel it together.
Photo credit from report “A Preliminary Evaluation of Seasonal Water Levels Necessary to Sustain Mount Emmons Fen: Grand Mesa, Uncompahgre and Gunnison National Forests,” David J. Cooper, Ph.D, December 2003.
The scope of federal jurisdiction under the Clean Water Act remains perplexing, particularly now that Colorado is the only state in the nation where the Navigable Water Protection Rule did not take effect June 22, 2020. In the context of a lengthy “stakeholder” process, on November 20, 2020, the Colorado Department of Public Health and Environment (CDPHE) issued a White Paper addressing its regulatory options in light of the new federal WOTUS rule. Construction companies, developers, and other businesses seeking to permit activities around wetlands, ephemeral waters, and intermittent streams in Colorado would benefit from reviewing this comprehensive discussion of the multitude of dilemmas Colorado and others states face in light of the new rule.
The state’s White Paper includes background on these topics –
Federal permitting including Section 402 and 404 permits.
State waters and the state’s regulation of discharges to state waters.
The Supreme Court’s Rapanos decision and subsequent guidance.
The 2020 Navigable Waters Protection Rule.
Litigation of the 2020 Navigable Waters Protection Rule.
And perhaps most importantly –
Potential impacts of the 2020 Navigable Waters Protection Rule if it were to go into effect in Colorado.
Of most significance in terms of the impacts to state regulatory programs, the White Paper states:
The rule includes several definitions that further limit how the EPA and the Corps will define WOTUS in contrast to the existing regulatory framework. First, it restricts the definition of protected “adjacent wetlands” to those that “abut” or have a direct hydrological surface connection to another jurisdictional water “in a typical year.” 33 C.F.R. § 328.3(c)(1); 40 C.F.R. § 120.3(3)(i). Wetlands are not considered adjacent if they are physically separated from jurisdictional waters by an artificial structure and do not have a direct hydrologic surface connection. The 2020 Rule also limits protections for tributaries to those that contribute perennial or uncertain levels of “intermittent” flow to traditional navigable waters in a “typical year,” a term whose definition leads to additional uncertainty. 33 C.F.R. § 328.3(c)(12); 40 C.F.R. § 120.2(3)(xii); 33 C.F.R. § 328.3(c)(13); 40 C.F.R. § 120.2(3)(xiii).
Collectively, these new definitions in the 2020 Rule will reduce the scope of waters subject to federal jurisdiction in Colorado far below that of the 2008 Guidance. The state waters that would no longer be considered “waters of the United States” under the 2020 Rule have been referred to as “gap waters” and are further described in Section II below. Historically, not all of Colorado’s state waters have been considered WOTUS. However, the [CDPHE] has maintained that the number of state waters considered WOTUS under the 2008 Guidance is far more than would be considered WOTUS under the 2020 Rule. [Emphasis added.]
President-elect Joe Biden opposes proposals to allow uranium mining around the Grand Canyon, which the Trump administration supports. Michael Quinn, NPS/Flickr, CC BY
The Trump administration has waged what I and many other legal experts view as an all-out assault on the nation’s environmental laws for the past four years. Decisions at the Environmental Protection Agency, the Interior Department and other agencies have weakened the guardrails that protect our nation’s air, water and public lands, and have sided with industry rather than advocating for public health and the environment.
Senior officials such as EPA Administrator Andrew Wheeler assert that the Trump administration has balanced environmental regulation with economic growth and made the regulatory process less bureaucratic. But former EPA leaders from both Democratic and Republican administrations have called this administration’s actions disastrous for the environment.
Rolling back laws and hollowing out agencies
The Trump administration has used many tools to weaken environmental protection. For example, Trump issued an executive order in June 2020 to waive environmental review for infrastructure projects like pipelines and highways.
A worker installs components at the base of a wind turbine blade at the Siemens plant in Fort Madison, Iowa. President-elect Joe Biden views renewable energy as a major source of high-wage manufacturing jobs. Timothy Fadek/Corbis via Getty Images)
A quick about-face
I expect that the Biden administration will quickly signal to the nation that effectively applying the nation’s environmental laws matters to everyone – especially to communities that bear an unfair share of the public health burden of pollution.
With a closely divided Senate, Biden will need to rely primarily on executive actions and must-pass legislative measures like the federal budget and the Farm Bill to further his environmental agenda. Policies that require big investments, such as Biden’s pledge to invest US$400 billion over 10 years in clean energy research and innovation, can make a big difference, but may be challenging to advance. Coupling clean technology with infrastructure and jobs programs to build back better is likely to have broad appeal.
I expect that officials will move quickly to restore the role of science in agency decision-making and withdraw Trump-era policies that make it harder to adopt protective regulations. A Biden EPA will end efforts to impede states like California that are moving ahead under their own authority to protect their residents, and will make clear to career staff that their expertise is valued.
The agency is likely to withdraw or closely scrutinize pending Trump proposals, such as the ongoing review of the current standard for fine-particle air pollution. Officials also will review pending litigation, much of which involves challenges to Trump administration rule revisions and policies, and decide whether to defend any of them. There likely won’t be many.
In their final campaign debate, President Trump and former Vice President Joe Biden offered sharply contrasting views of how environmental protection affects the economy.
One area where EPA can quickly change course is enforcement. Biden’s climate and energy plan pledges to hold polluters accountable, and his administration reportedly plans to create a new division at the Justice Department focused on environmental and climate justice. Biden has promised greater attention to environmental justice communities, where neighborhoods are heavily affected by concentrations of highly polluting sources such as refineries and hazardous waste sites.
Many of these actions can be done quickly through new executive orders or policy changes. Regulatory changes will take longer. In my view, Biden’s biggest challenge will be deciding what to prioritize. His administration will not be able to do (or undo) everything. Even with a revitalized career workforce and political staff all rowing in the same direction, there won’t be enough bandwidth to address all the bad policies enacted in the past four years, let alone move forward with a proactive agenda focused on public health protection and environmental justice.
The state officials overseeing efforts to reduce reliance on fossil fuels, conserve natural landscapes and beat rising heat in Colorado anticipate better opportunities for federal help under Democratic President-elect Joe Biden.
And they’re preparing for teamwork with the Environmental Protection Agency, Fish and Wildlife Service, Forest Service and the departments of energy, transportation and agriculture, among other federal agencies, to move beyond planning to aggressive action on challenges from saving dying forests to cutting vehicle emissions.
“It’s going to be a 180-degree shift,” Colorado Energy Office director Will Toor said in a video call with state agency chiefs. “The Trump administration has been probably the most anti-environmental administration in history. Certainly when it comes to addressing the challenges of climate change, they’ve done a surgical attack on virtually every federal policy that would support climate action… making it harder to act at the state level…
Biden’s pledge to rejoin the Paris climate agreement and an expected push to contain warming sync with efforts under Democratic Gov. Jared Polis to reduce heat-trapping pollution within Colorado by closing coal-fired power plants and increasing regulation of the fossil fuel industry.
Colorado ranks among the leading oil-and-gas producer states, exporting fossil fuels that when burned elsewhere accelerate climate warming. Biden has called for a $2 trillion stimulus investment to hasten a shift to clean energy and create jobs — funds that Colorado officials planned to tap.
Biden also has promised reversals of Trump rollbacks of environmental regulations for protecting air, land and water. If Congress doesn’t collaborate, Biden has indicated he’ll wield executive power where possible to act unilaterally, which may reduce oil and gas drilling on western public lands.
And Biden transition team officials are reviewing proposals that would advance climate action Colorado officials have begun to consider. For example, they’re mulling creation of a “carbon bank” run by the U.S. Department of Agriculture that would pay farmers who adopt no-till methods and store more carbon in soil — helping a draw-down of heat-trapping air pollution that causes climate warming…
At the Colorado Department of Public Health and Environment, state efforts dealing with air pollution, emerging water contaminants such as PFAS “forever” chemicals and degradation of waterways traditionally have hinged on cooperative support from federal agencies.
John Putnam, director of the state public health department’s environmental programs, anticipated a reinvigoration of agencies for better enforcement of national clean air and clean water regulations that under Trump were weakened…
State officials cited examples where they felt the Trump administration stymied Colorado environmental efforts, including legal action against California’s stricter fuel-efficiency standards, which Colorado recently decided to follow. Trump officials also pressed Colorado to take the lead on toxic mine cleanups, and assume liability if things went wrong. And the weakening of Clean Water Act protections removed safeguards for many streams across Colorado.
The increasing costs of dealing with climate change are falling largely on local communities where extreme weather and wildfires linked to warming hit home. In Boulder County, commissioners recently allocated $1.5 million to help deal with erosion and destruction of homes caused by the Calwood and Lefthand Canyon fires. A consultant hired by the county estimated costs for building resilience to climate warming will top $150 million a year for non-disaster impacts on infrastructure such as roads.
The shift from Trump to Biden “means the world — the future of our planet,” said Boulder County Commissioner Elise Jones, who also serves on Colorado’s Air Quality Control Commission.
“We have to get on track on climate change in the next decade,” Jones said. “If we spent four more years under a climate change denier, we might have dug ourselves into a hole bigger than we can get out of.”
Funding details promised by the Great American Outdoors Act were due Nov. 2, but state and federal land managers are still waiting for specifics of what is supposed to be a record amount of money for the Land and Water Conservation Fund and deferred maintenance projects.
The Great American Outdoors Act — brokered in part by Colorado’s U.S. Sen. Cory Gardner and trumpeted by President Donald Trump as they both ran for re-election — directed the full $900 million a year to the LWCF, which uses royalties paid by energy companies to buy federal land for protection. And the legislation spread $9.5 billion over five years toward catching up on an estimated $21.6 billion in delayed upkeep on public lands. It also promised to more than double federal funding to several Western states that rely on LWCF support to acquire and protect public lands and access.
But fear is growing that the promises of the Great American Outdoors Act — which had bipartisan support this election year — were more about politics than public lands.
The deadline for the Department of Interior and Department of Agriculture’s Forest Service to submit its project lists for deferred maintenance and LWCF projects was last week. The agencies submitted lists for maintenance projects on time. But the LWCF lists arrived a week after the Nov. 2 deadline, following a Nov. 9 memo from the Trump Administration that delegated authority to the Interior and Agriculture departments to release the LWCF funding lists.
The broad-stroke lists have left state and federal land managers scratching their heads.
The lists included no details on specific projects or costs, even though those details — like $116 million for 61 ready-to-go BLM, Fish and Wildlife and National Park Service projects — were circulated by federal land agencies earlier this year when lawmakers were studying the Great American Outdoors Act. (The act requires “a detailed description of each project, including the estimated expenditures from the fund for the project for applicable fiscal years.”)
And perhaps most troubling is the Interior Department’s Nov. 9 plan for spending the LWCF’s $900 million. The note from Interior Sec. David Bernhardt to the U.S. Senate allocated only $2.5 million to the Bureau of Land Management for land acquisition. The Forest Service’s list of 36 LWCF projects totaling $100 million included a note that one project was in Colorado’s White River National Forest. The White River National Forest’s only request for LWCF funding for Fiscal 2021 was for $8.5 million to acquire and protect Garfield County’s 488-acre Sweetwater Lake property.
Sweetwater Lake, Garfield County, Colorado. Photo credit: Todd Winslow Pierce with permission
Calls and emails to state BLM and Park Service officials were directed to the Interior Department in Washington, D.C., which did not respond. White River officials said they had not received any information about LWCF funding for Sweetwater Lake, which was acquired by conservation groups this spring with a plan to transfer the property over to the Forest Service.
“The monumental nature of the Great American Outdoors Act deserves more information so the private sector can engage and we know where these investments will be made,” said Jessica Turner with the Outdoor Recreation Roundtable, a coalition of 33 outdoor organizations representing more than 110,000 businesses…
“Apparently they’ve already lost their interest in taking care of our public lands,” Colorado’s Democratic U.S. Sen. Michael Bennet said in an emailed statement. “Coloradans worked for years to secure full and permanent funding for the Land and Water Conservation Fund. The fact that the Trump Administration is failing to follow through and meet LWCF deadlines, while not surprising, demonstrates a serious lack of commitment to conservation.”
A spokeswoman with Colorado Parks and Wildlife said the agency is waiting for information on project lists, official funding, timelines and whether the state grants the agency applied for have been approved…
The U.S. Senate’s Appropriations Committee on Nov. 10 released funding recommendations for the Interior Department and Forest Service that provides specific details. The committee plan directs $54.1 million to the BLM and $120 million to the Forest Service for land acquisition. The committee’s list for LWCF acquisition projects includes $8.5 million for the Forest Service for Sweetwater Lake, $20.5 million for “recreational access” on BLM lands, $1 million for the Fish and Wildlife Service’s San Luis Valley Conservation Area and $850,000 for Dinosaur National Monument.
The committee, in its allocation recommendations said it was “disappointed by the lack of specific bureau- and project-level information” offered by the Interior and Agriculture department secretaries and dismissed Bernhardt’s issues with precise price tags for repairs as “insufficient reason to withhold more specific costs by project.”
The committee directed the two departments “to provide specific project information, including estimated costs by project, as soon as possible,” noting that it intended to fund LWCF through final appropriations — without or without the department lists.
For more than 25 years, Congress has directed U.S. government agencies to set energy and water efficiency standards for many new products. These measures conserve resources and save consumers a lot of money. Until recently, they had bipartisan support.
The Energy Policy Act of 1992, passed by a Democratic Congress and signed by Republican President George H.W. Bush, set the maximum flow rate for showers at 2.5 gallons per minute. President Trump is proposing to increase the rate, which he calls inadequate to wash his “beautiful hair.”
The Trump administration is proposing to roll back a regulation that has spurred manufacturers to produce high-efficiency showerheads. EPA
When is a showerhead not a showerhead?
On Aug. 13, the Department of Energy’s Office of Energy Efficiency and Renewable Energy issued a Notice of Proposed Rulemaking to amend the existing standard for showerheads. The documentation prints out at 25 pages of mind-numbing rationalization. Its definition of showerheads exemplifies the byzantine logic behind this policy shift.
For example, the proposed rule provides three images of fixtures with between three and eight heads attached to a single pipe coming out of the wall. So long as none of the individual heads has a flow greater than 2.5 gallons per minute, the measure asserts that each fixture satisfies Congress’s quest for water and energy conservation.
Under the Trump administration’s proposed rule, each of these fixtures could produce up to 2.5 gallons of water per minute from each separate nozzle. Current law limits the entire device to 2.5 gallons per minute. DOE
How can the Energy Department allow shower fixtures with as many as eight heads, each emitting 2.5 gallons per minute? For context, Webster’s dictionary defines a showerhead as a “fixture for directing the spray of water in a bathroom shower.”
But the proposed rule interprets “showerhead” to mean “an accessory to a supply fitting for spraying water onto a bather.” With this sleight of hand, a congressional rule limiting showerhead flows can be deftly avoided by installing a hydra-headed fixture with multiple “showerheads,” each flowing at 2.5 gallons per minute.
The proposed new rule classifies this device as a ‘body spray,’ not a showerhead. DOE
The agency also released a fourth image of a wall fixture with seven nozzles, which the rule would not subject to the 2.5 gallons per minute maximum. The Energy Department deems these fixtures a “body spray” rather than a showerhead because they are “usually located” below the bather’s head. (Of course, the person showering may be short, or the plumber may install the fixture high on the shower wall.) Body sprays may have six or eight nozzles with no flow limits.
The sad part of this foolishness is that the Environmental Protection Agency’s WaterSense program, which identifies water-efficient projects and promotes water conservation, has been spectacularly successful, at virtually no cost to consumers or the regulated community. Showers constitute 17% of residential water use. That’s 40 gallons per day for the average family, or 1.2 trillion gallons annually in the United States.
COVID-19 has helped to make the affordability of water a national issue. Some rural areas, such as the Navajo Nation, where many people need to haul water to their homes and villages, have higher rates of coronavirus infection. People who have lost their jobs find themselves unable to pay their water bills, which in turn compromises the financial stability of water providers.
More than 2 million Americans don’t have running water in their homes, according to a 2019 report.
Allowing showers to use more water would have several unfortunate consequences for cities across the country. It would increase the amount of water cities must treat; raise the chances of raw sewage overflows at water treatment plants – especially in cities such as Washington, D.C. that combine storm and sewer water; and increase the amount of energy used to pump and treat water.
Disrupting low-flow fixture rules would create special hardships for western cities, such as Los Angeles and Las Vegas, that have struggled with water shortages for decades. Both cities remarkably reduced their total water use between the 1980s and 2020, despite rapid population growth, partly by converting residences to low water-use fixtures.
Water is not just another natural resource. Without it our bodies cease to function, our crops dry up, and our economy grinds to a halt. We can’t make any more water, so it makes sense to use the water we have wisely.
Prior to mining, snowmelt and rain seep into natural cracks and fractures, eventually emerging as a freshwater spring (usually). Graphic credit: Jonathan Thompson
The Office of Mountains, Deserts and Plains will take charge of remediating abandoned mine lands, including the Gold King Mine in southwest Colorado
The Environmental Protection Agency is creating a new office in Lakewood that will focus on cleaning up abandoned hardrock mining sites west of the Mississippi River, including the Bonita Peak Mining District where the Gold King Mine disaster originated in 2015.
The “Bonita Peak Mining District” superfund site. Map via the Environmental Protection Agency
The Office of Mountains, Deserts and Plains will be located in the EPA’s regional office at the Denver Federal Center, the agency announced during a news conference at the Western Museum of Mining and Industry in Colorado Springs on Wednesday. EPA’s National Mining Team Leader Shahid Mahmud will be the acting director, and the team will have nine full-time staff positions.
The office, which will use existing agency funds, will primarily focus on remediation work at Superfund sites and other abandoned mining locations, which release millions of gallons of pollution into streams each year. Remediation efforts will include cleaning up sites and the surrounding environment, and in some cases rebuilding the mine for operations.
There are more than 63 Superfund Mining and Mineral Processing Sites west of the Mississippi River, including nine in Colorado. In Colorado alone, there are roughly 23,000 abandoned mines.
Colorado abandoned mines
Many historic mining sites don’t have an owner or operator to facilitate cleanup operations themselves, placing it in the EPA’s hands…
The new office will also help speed up project timelines, including to clean up hundreds of abandoned uranium mines on the Navajo Nation.
An agreement finalized in February designated funding and resources to clean up 24 of the highest priority mines, five years after the federal government and tribe first reached a settlement on the mines…
Another goal of the office is to make it easier for so-called “good Samaritan” cleanup operations, such as those facilitated by Trout Unlimited or The Nature Conservancy. Current law says that if a group wants to contribute to cleanup efforts, they could be responsible for finishing the job, whether they’re capable of doing so or not. While the law is what it is, Benevento said, the new office will do what it can to make collaborative cleanup efforts “as unbureaucratic as possible.”
Bonita Mine acid mine drainage. Photo via the Animas River Stakeholders Group.
New emails detail drained ponds, salvaged fish and a tense relationship with the Department of Homeland Security.
During the fall of 2019, the Department of Homeland Security began pumping large amounts of water from a southern Arizona aquifer to mix concrete for the Trump administration’s border wall. The aquifer is an essential water source for the San Bernardino National Wildlife Refuge, so when the pumping escalated, U.S. Fish and Wildlife officials watched helplessly as the water levels at several ponds — the main habitat for the endangered fish at this Sonoran Desert refuge — dropped “precipitously.”
In what Bill Radke, who has managed the refuge for two decades, called “life support” actions, staff was forced to shut off water to three of the ponds to minimize broader damage. As a result, biologists had to salvage endangered fish from the emptying ponds. It was “like cutting off individual fingers in an attempt to save the hand,” Radke wrote in an email to staff.
Since its creation in 1982 the 2,300-acre refuge’s sole mission has been to protect the rare species of the Río Yaqui, including endangered fishes like the Yaqui chub and Yaqui topminnow, and other species, such as the tiny San Bernardino springsnail and the endangered Huachuca water umbel, a plant that resembles clumps of tubular grass. Through a series of artesian wells connected to an aquifer, the refuge has kept ponds filled in this fragile valley for nearly 40 years.
Under normal circumstances, a significant construction project like a border wall would be required to go through an extensive environmental review process as dictated by the National Environmental Policy Act. The Department of Homeland Security says it operates under the spirit of NEPA and solicits public comment. But with environmental laws — including NEPA, the Endangered Species Act and the Fish and Wildlife Coordination Act — waived for the border wall, the refuge lacks any legal protection, either for itself or the endangered species in its care. So wildlife officials have tried to work with the department, sending hydrological studies and providing recommendations about how to reduce water use near the refuge — information that the Department Homeland Security has repeatedly claimed it takes into consideration.
Border wall construction infrastructure is seen cutting through the landscape of southern Arizona. Bill Radke called the water withdrawals for the border wall Òthe current greatest threat to endangered species in the southwest region. Photo credit: Russ McSpadden/Center for Biological Diversity via The High Country News
But as emails recently obtained by High Country News through a Freedom of Information Act Request show, Homeland Security consistently ignored the expertise of Radke and his team. The emails, which were sent from August 2019 to January 2020, chronicle months of upheaval at the refuge and dysfunctional communication between Fish and Wildlife and Homeland Security. During crucial moments, Homeland Security kept wildlife agency staff in the dark as land managers and hydrologists worked to anticipate damages.
“What we are seeing in these FOIA documents confirms a pattern with CBP and DHS that goes back 15 years,” said Randy Serraglio, Southwest conservation advocate with the Center for Biological Diversity.
Matthew Dyman, a U.S. Customs and Border Protection spokesman, stated that “DHS and CBP have and continue to coordinate weekly, and more frequently on an as needed basis, to answer questions concerning new border wall construction projects and to address environmental concerns from the U.S. Fish and Wildlife Service.” Nevertheless, documents confirm that border wall construction caused groundwater levels to plummet and harmed endangered fish at the refuge.
The Yaqui Chub is one of the four endangered Ro Yaqui species protected at San Bernardino Wildlife Refuge. W.R. Radke/US Fish and Wildlife Service
IN OCTOBER 2019, RADKE wrote to Fish and Wildlife staff that “the threat of groundwater depletion” at the San Bernardino Refuge had gone from “concerning” to a “dire emergency.” Subsequent emails detail the refuge’s difficulty in obtaining water usage estimates from DHS contractors for an accurate risk assessment. Fish and Wildlife officials sent the department a hydrology analysis to raise an alarm and requested a five-mile buffer around the refuge for well drilling.
According to the emails, though, the Department of Homeland Security did little in response. “I was disappointed today to see first hand that DHS and U.S. Army Corps of Engineers did not abide by the (most recent) October 16, 2019, Fish and Wildlife Service request to minimize water withdrawal from the aquifer that supports all wetlands on San Bernardino NWR,” Radke wrote. “Instead contractors made plans to drill even closer to the refuge, drilling their second new well 480 feet east of (the refuge).”
CBP spokesman Dyman maintains that construction contractors honored the buffer request. But emails show otherwise: At least one well was drilled less than 500 feet from the refuge boundary; it was abandoned only after it didn’t produce water. And Fish and Wildlife soon learned that even more well locations were being considered near the refuge, according to emails. Homeland Security also continued to pump large volumes of water from a private landowner whose well is just 1.5 miles from the refuge.
Despite a request by FWS that all wells be outside a 5 mile buffer around San Bernardino Wildlife Refuge, wells have been built as close as 1.5 miles and 480 feet from the refuge border. Photo credit: Russ McSpadden/Center for Biological Diversity
Around the same time, pond levels in the refuge dropped. In a series of emails in late November, Radke grew increasingly frustrated. On Nov. 22, he wrote to agency employees, “Our refuge water monitoring is already showing harm to our aquifer during months when the refuge has always demonstrated an increase in groundwater levels. We have ponds dropping precipitously (as much as a foot already) that have never gone low during the winter months — not ever.” Fish and Wildlife had warned Homeland Security that this would happen, but no apparent action was ever taken. “I do not know what reaction to expect from DHS or (the Army Corps of Engineers) to our continuing requests for them to minimize or mitigate impacts to the refuge,” Radke wrote, “but so far our requests have been consistently met with indifference.”
ON DEC. 12, RADKE CALLEDthe water withdrawals for the border wall “the current greatest threat to endangered species in the southwest region.” By that point, refuge staff had begun to track the impact themselves; there was little else they could do. The monitoring became “an overwhelming priority that diminishes our ability to adequately meet other important objectives, obligations and due dates,” Radke wrote.
By January, the impact on the ponds was obvious. According to a Fish and Wildlife memo, swings in water pressure and depth were clearly documented. The report noted that these changes “began to occur as water was used off refuge for border wall construction.” Earlier emails speculated that the situation would only grow more dire at the refuge during the sweltering summer months, when evaporation both from the ponds and the water being pumped would use even more of the precious desert resource.
In an email, Dyman told High Country News that Customs and Border Protection and the U.S. Army Corps of Engineers “are working closely with the construction contractor on estimated water usage requirements for barrier construction in Arizona as well as working with San Bernardino National Wildlife Refuge to mitigate the impacts of groundwater use for the project.” Beth Ullenberg, a spokeswoman for the Fish and Wildlife Service, confirmed that the refuge is working with Homeland Security. The agency “has identified that larger capacity pumps are now needed in order to maintain pond levels and appropriate pond outflows,” Ullenberg wrote. She said the contractor is purchasing and will install the new pumps at the refuge.
Those pumps came too late for at least three ponds and according to a document obtained by Defenders of Wildlife, as recently as May water pumping near the refuge was still having a direct and detrimental impact to the refuge. Environmental groups say a pattern of secrecy, lack of communication and failure to coordinate with land managers at the border continue to endanger other biodiverse regions, such as Quitobaquito Springs in Organ Pipe Cactus National Monument, where they intersect with border wall construction.
“(The Department of Homeland Security and Customs and Border Patrol) have consistently ignored the input of land managers and landowners and other stakeholders along the border with regard to these construction projects,” Serraglio said, “and it has resulted in serious damage time and time again.”
Mud plantain is an aquatic annual-perennial plant of the pickerelweed family. It grows partly or wholly in water, whether rooted in the mud, as a lotus, or floating as the water hyacinth. Photo credit: W.R. Radke/US Fish and Wildlife Service
Jessica Kutz is an assistant editor for High Country News. Email her at jessicak@hcn.org.
A coalition of 20 states is suing the Environmental Protection Agency (EPA) over a rule that weakens states’ ability to block pipelines and other controversial projects that cross their waterways…
The suit from California and others asks the courts to throw out the rule, which was finalized in June.
The Clean Water Act essentially gave states veto authority over projects by requiring projects to gain state certification under Section 401 of the law.
It applies to a wide variety of projects that could range from power plants to waste water treatment plants to industrial development.
But that portion of the law has been eyed by the Trump administration after two states run by Democrats have recently used the law to sideline major projects.
New York denied a certification for the Constitution Pipeline, a 124-mile natural gas pipeline that would have run from Pennsylvania to New York, crossing rivers more than 200 times. Washington state also denied certification for the Millennium Coal Terminal, a shipping port for large stocks of coal…
The new policy from the Trump administration accelerates timelines under the law, limiting what it sees as state power to keep a project in harmful limbo. The need for a Section 401 certification from the state will be waived if states do not respond within a year.
ut states argue the new rule won’t give them the time necessary to conduct thorough environmental reviews of massive projects.
And on Monday, Becerra complained the Trump administration wants states to evaluate only the most narrow impacts of a project, while issues like downstream flows from a hydroelectric plant or impacts on nearby wetlands are overlooked.
Along with California, Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington and Wisconsin also joined the suit.
It’s fitting that President Trump invoked an interstate highway expansion in Atlanta last week to announce final rules that, if they survive the inevitable legal challenges, will undermine one of the nation’s bedrock environmental laws, the National Environmental Policy Act. American voters face a fork in their own road this November — stay on the Trump expressway to environmental degradation and catastrophic climate change, or shift to the road, bumpy as it may be, to a cleaner environment and more sustainable future of wind, solar and other energy sources that do not involve burning fossil fuels.
The COVID-19 pandemic understandably has seized the nation’s attention, but that hasn’t lessened the risk we all face from air and water pollution and carbon-fed global warming. Trump has unabashedly sought to dismantle federal regulatory structures to speed up construction projects while forging a national energy plan based on producing and burning fossil fuels.
His embrace of the oil, gas and coal industries defies the global scientific consensus that burning fossil fuels emits greenhouse gases that make the Earth less habitable by warming the atmosphere, feeding stronger and more frequent storms, triggering devastating droughts that propel human migration, and pushing up sea levels so that they encroach on cities and other human settlements. In fact, the National Oceanic and Atmospheric Administration reported last week that unusually high tides led to record flooding among one-quarter of Atlantic and Gulf Coast communities where the agency maintains tide gauges. Climate change is no dystopian vision of the future; it is here.
Trump’s efforts to eviscerate regulatory oversight of the environment is rooted in his belief that regulations are for the most part unnecessary hurdles to economic progress. He bewails the amount of time it takes for projects to clear environmental reviews and related court challenges, adding what, in his mind, are unnecessary costs and delays. To be honest, he may have something there. NEPA came into being five decades ago — signed into law by President Nixon — and it’s not out of line to suspect that there are places where the law and the regulations that arose from it could use some reasonable revising. But Trump and his industry-connected advisors are not the ones to trust with such a task.
These new rules are not reasoned updates. By requiring environmental impact analyses to be completed within two years (now they often take twice that), the administration seeks to cut short the consideration of those most affected by major projects — often people of color and low-income households — and disarm the environmental activists fighting to ensure that necessary environmental protections are respected. The rules also would require regulators to no longer weigh the cumulative effects of a proposed project and limit their review to effects “that are reasonably foreseeable” and “have a close causal relationship” to the work being done. So, for example, a proposed project’s emissions could not be added to those of other nearby emitters to determine whether their cumulative impact creates an excessive burden on a specific community.
Separately, the Government Accountability Office reported last week that the administration tweaked the formula for measuring the “social cost of carbon” so that estimates of the potential harm from emissions are seven times lower than they used to be. It’s foolhardy — and dangerous — to look at environmental impacts through such a narrow lens.
Meanwhile, presumptive Democratic nominee Joe Biden, after lengthy negotiations with progressive environmentalists who had backed Sen. Bernie Sanders (I-Vt.), released a $2-trillion plan for quickly shifting the nation from its reliance on fossil fuels to renewable sources.
It’s not the controversial “Green New Deal” that progressives have been pushing, but it’s in the neighborhood. Getting such a measure through Congress even if both chambers were controlled by Democrats would be no easy task, but Biden’s proposal at least recognizes the dire future we all face if the nation — and the world — do not fundamentally alter how we produce and consume energy.
The world cannot afford to backslide on environmental protections and the all-important fight to mitigate the worst effects of climate change. Yes, jobs are important, but survival more so. The errors and consequences of the past are crystal clear. The question is, will we heed those lessons?
Governor Jared Polis and members of his administration released a statement following the Trump administration’s increased efforts to rollback the bedrock National Environmental Protection Act (NEPA).
“This bedrock law helps protect the air we breathe and the water that is the lifeblood of our communities. We know NEPA needs to be more streamlined to ensure renewable energy and infrastructure projects can get moving. The voices of Coloradans should be heard on the projects that impact our communities,” said Governor Jared Polis. “Yet the Trump administration continues to put its thumb on the scale in order to favor special interests over hardworking Coloradans who value our environment and support a deliberative, citizen involved government. While I share the goal of cutting red tape, this latest Trump move is a misstep.”
Director Lew and members of the Polis administration testified at a field hearing in Denver in opposition to the Trump administration’s misguided NEPA roll-back
Interstate 70 and a Nestle Purina pet food factory loom above northeast Denver’s Elyria-Swansea neighborhoods. By Matthew Staver
“Our nation’s roads connect our country and economy, but, historically, they divided many communities in their path,” said CDOT Executive Director Shoshana Lew. “Construction of the interstate cut through the heart of many cities and rural areas in America, with right of way often acquired disproportionately from lower-income and minority communities. On the heels of this activity in the 1950s and 1960s, NEPA provided a structured way to ensure a conversation with citizens about how a road, bridge or railway would affect their neighborhood, and to ensure opportunity for them to articulate their views or concerns. We can and should always find ways to improve these processes, but it is critical that we do so in ways that improve our understanding of the cumulative, direct, and indirect impact of projects on both our environment and our neighbors. This action misses the mark.”
“The decision by the Trump Administration to significantly alter NEPA implementation is the wrong direction for our country and Colorado,” said DNR Executive Director Dan Gibbs. “Coloradans highly value clean air and water. They want to protect our wildlife and open spaces, and ensure their communities are safe and healthy. The Trump Administration’s changes reduce safeguards, minimize the need to consider the broader or long-term impacts of federal decisions, and put arbitrary limits on environmental studies. These are contrary to Coloradans’ values and will likely result in further harm to Colorado’s natural resources, our economy, and communities.”
Rush hour on Interstate 25 near Alameda. Screen shot The Denver Post March 9, 2017.
“Colorado’s economy and quality of life depend on clean air, clean water, and a stable climate,” said CEO Executive Director Will Toor. “The Trump administration’s new guidelines appear to be surgically designed to avoid consideration of the climate impacts of projects, will eliminate consideration of the cumulative impacts of fossil fuel development, and will undermine efforts to protect air quality in Colorado and other states.”
The carbon dioxide data on Mauna Loa constitute the longest record of direct measurements of carbon dioxide in the atmosphere. C. David Keeling of the Scripps Institution of Oceanography began measurements in 1958 at the NOAA weather station. NOAA started its own CO2 measurements in May of 1974, and they have run in parallel with those made by Scripps since then. Credit: NOAA and Scripps Institution of Oceanography.
“This is what disempowerment looks like,” said Jill Hunsaker Ryan, Executive Director of the Colorado Department of Public Health and Environment. “The federal government is telling agencies to tune out community voices and ignore the most important issues when making decisions. This includes disregarding or diminishing questions of environmental justice, climate change, ozone pollution, and cumulative impacts. Colorado will once again step into the breach to protect its communities’ health, as well as our air, water and lands.”
David Bernhardt answers a question about climate change from Luke Runyon, December 13, 2019, Colorado River Water Users Association Annual Conference.
Photo credit from report “A Preliminary Evaluation of Seasonal Water Levels Necessary to Sustain Mount Emmons Fen: Grand Mesa, Uncompahgre and Gunnison National Forests,” David J. Cooper, Ph.D, December 2003.
The Trump administration’s adoption of narrower protections for wetlands and waterways can take effect almost everywhere in the nation, except Colorado, while courts review whether the move was legal.
A federal Judge in California on Friday rejected a request for a nationwide injunction of the rule. Hours later, a federal Judge in Colorado agreed to freeze the federal rule within that state.
The California court’s decision is a major blow to environmentalists and states that had hoped to block the Navigable Waters Protection Rule across the country before it takes effect Monday. Colorado, meanwhile, is celebrating its success in blocking the rule in the Centennial State.
A coalition of liberal states and cities challenged the joint rule from the Environmental Protection Agency and Army Corps of Engineers, saying the agencies violated multiple federal laws. The U.S. District Court for the Northern District of California heard a marathon session of arguments June 18…
Colorado had filed its own legal challenge in the U.S. District Court for the District of Colorado.
Judge William J. Martinez said some of the state’s arguments were “unusual and partly self-contradictory,” but concluded that the state met the bar for a preliminary injunction, which will put the regulation on hold in that state while the litigation plays out.
Other lawsuits attacking the regulation are pending in district courts across the country, where litigants are pursuing similar efforts to block the measure.
The Trump rule defines which types of wetlands and waterways are subject to federal regulations under the Clean Water Act. The interpretation replaces the Obama-era Clean Water Rule and a set of Reagan-era regulations.
Click here to read the newsletter. Here’s an excerpt:
NARROW WOTUS ON HOLD IN CO
The adoption of narrower Clean Water Act protections for streams and wetlands is currently blocked in Colorado, as a result of a court ruling on the state’s challenge to the new federal rule. Details are in this Bloomberg Law report.
These wetlands, located on a 150-acre parcel in the Homestake Creek valley that Homestake Partners bought in 2018, would be inundated if Whitney Reservoir is constructed. The Forest Service received more than 500 comments, the majority in opposition to, test drilling associated with the project and the reservoir project itself. Photo credit: Heather Sackett/Aspen Journalism
Bemoaning uneven individual and state compliance with public health recommendations, top U.S. COVID-19 adviser Anthony Fauci recently blamed the country’s ineffective pandemic response on an American “anti-science bias.” He called this bias “inconceivable,” because “science is truth.” Fauci compared those discounting the importance of masks and social distancing to “anti-vaxxers” in their “amazing” refusal to listen to science.
It is Fauci’s profession of amazement that amazes me. As well-versed as he is in the science of the coronavirus, he’s overlooking the well-established science of “anti-science bias,” or science denial.
Americans increasingly exist in highly polarized, informationally insulated ideological communities occupying their own information universes.
In theory, resolving factual disputes should be relatively easy: Just present strong evidence, or evidence of a strong expert consensus. This approach succeeds most of the time, when the issue is, say, the atomic weight of hydrogen.
But things don’t work that way when scientific advice presents a picture that threatens someone’s perceived interests or ideological worldview. In practice, it turns out that one’s political, religious or ethnic identity quite effectively predicts one’s willingness to accept expertise on any given politicized issue.
“Motivated reasoning” is what social scientists call the process of deciding what evidence to accept based on the conclusion one prefers. As I explain in my book, “The Truth About Denial,” this very human tendency applies to all kinds of facts about the physical world, economic history and current events.
The same facts will sound different to people depending on what they already believe. AP Photo/John Raoux
Denial doesn’t stem from ignorance
The interdisciplinary study of this phenomenon has made one thing clear: The failure of various groups to acknowledge the truth about, say, climate change, is not explained by a lack of information about the scientific consensus on the subject.
Instead, what strongly predicts denial of expertise on many controversial topics is simply one’s political persuasion.
A 2015 metastudy showed that ideological polarization over the reality of climate change actually increases with respondents’ knowledge of politics, science and/or energy policy. The chances that a conservative is a climate science denier is significantly higher if he or she is college educated. Conservatives scoring highest on tests for cognitive sophistication or quantitative reasoning skills are most susceptible to motivated reasoning about climate science.
Denialism is not just a problem for conservatives. Studies have found liberals are less likely to accept a hypothetical expert consensus on the possibility of safe storage of nuclear waste, or on the effects of concealed-carry gun laws.
Denial is natural
The human talent for rationalization is a product of many hundreds of thousands of years of adaptation. Our ancestors evolved in small groups, where cooperation and persuasion had at least as much to do with reproductive success as holding accurate factual beliefs about the world. Assimilation into one’s tribe required assimilation into the group’s ideological belief system – regardless of whether it was grounded in science or superstition. An instinctive bias in favor of one’s “in-group” and its worldview is deeply ingrained in human psychology.
A human being’s very sense of self is intimately tied up with his or her identity group’s status and beliefs. Unsurprisingly, then, people respond automatically and defensively to information that threatens the worldview of groups with which they identify. We respond with rationalization and selective assessment of evidence – that is, we engage in “confirmation bias,” giving credit to expert testimony we like while finding reasons to reject the rest.
Unwelcome information can also threaten in other ways. “System justification” theorists like psychologist John Jost have shown how situations that represent a perceived threat to established systems trigger inflexible thinking. For example, populations experiencing economic distress or an external threat have often turned to authoritarian leaders who promise security and stability.
In ideologically charged situations, one’s prejudices end up affecting one’s factual beliefs. Insofar as you define yourself in terms of your cultural affiliations, your attachment to the social or economic status quo, or a combination, information that threatens your belief system – say, about the negative effects of industrial production on the environment – can threaten your sense of identity itself. If trusted political leaders or partisan media are telling you that the COVID-19 crisis is overblown, factual information about a scientific consensus to the contrary can feel like a personal attack.
This kind of affect-laden, motivated thinking explains a wide range of examples of an extreme, evidence-resistant rejection of historical fact and scientific consensus.
Have tax cuts been shown to pay for themselves in terms of economic growth? Do communities with high numbers of immigrants have higher rates of violent crime? Did Russia interfere in the 2016 U.S. presidential election? Predictably, expert opinion regarding such matters is treated by partisan media as though evidence is itself inherently partisan.
Denialist phenomena are many and varied, but the story behind them is, ultimately, quite simple. Human cognition is inseparable from the unconscious emotional responses that go with it. Under the right conditions, universal human traits like in-group favoritism, existential anxiety and a desire for stability and control combine into a toxic, system-justifying identity politics.
Science denial is notoriously resistant to facts because it isn’t about facts in the first place. Science denial is an expression of identity – usually in the face of perceived threats to the social and economic status quo – and it typically manifests in response to elite messaging.
I’d be very surprised if Anthony Fauci is, in fact, actually unaware of the significant impact of politics on COVID-19 attitudes, or of what signals are being sent by Republican state government officials’ statements, partisan mask refusal in Congress, or the recent Trump rally in Tulsa. Effective science communication is critically important because of the profound effects partisan messaging can have on public attitudes. Vaccination, resource depletion, climate and COVID-19 are life-and-death matters. To successfully tackle them, we must not ignore what the science tells us about science denial.
The silence you are hearing is no one being surprised.
The limits of the phrase “waters of the United States” within the Clean Water Act (CWA) have been the subject of conflicting, confusing, and often divergent case law for decades, and the efforts of the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACE) to issue new rulemakings beginning in the Obama administration have only led to a deeper legal quagmire. The most recent effort to redefine the term, the Navigable Waters Protection Rule (2020 WOTUS Rule) is already subject to conflicting court decisions, and split implementation.
The contrary decisions were both handed down on June 19, 2020 in the United States District Court for the District of Colorado and in the United States District Court for the Northern District of California. The Colorado decision granted the state’s request for a preliminary injunction preventing the implementation of the 2020 WOTUS Rule in Colorado. The California decision considered and rejected a similar request for nationwide injunction by seventeen states.
Colorado’s decision turned on an analysis of the U.S. Supreme Court Decision in Rapanos v. United States, 547 U.S. 715 (2006). Noting that is difficult to ascertain what the 4-1-4 Rapanos decision actually stands for, the Colorado district court looked at what it stands against. Five justices in Rapanos were expressly opposed to the categorical exclusion of intermittent and ephemeral streams from Clean Water Act protection that was proposed by the plurality opinion of Justice Scalia. Because the 2020 WOTUS Rule attempts to codify what the Supreme Court has already rejected as “inconsistent with the [CWA’s] text, structure, and purpose” (see Rapanos at 776), the judge concluded that Colorado is likely to succeed on the merits, and granted the requested injunction.
The California decision came to the opposite conclusion, relying heavily on the inherent ambiguity of the term “navigable waters” within the CWA. Citing Chevron U.S.A. v. NRDC, Inc. 467 U.S. 837 (1984), the court believed deference was due to the agencies when implementing ambiguous terms in a statute. The district court also noted that under National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005), an agency reversing itself regarding the interpretation of an ambiguous term is not automatically cause for denying Chevron deference. Moreover, the district court noted that a “court’s prior judicial construction of a statute [read: Rapanos] trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Brand X at 982. The court could not construe any proposition from the fractured Rapanos opinions as following unambiguously from the terms of the CWA, and thus concluded that the plaintiffs had not carried their burden of showing a likelihood of success on the merits. The broader injunction requested by the plaintiffs was denied.
The nation’s largest Native American tribe and several environmental groups are waging a legal challenge to a revised federal rule that lifts protections for many streams, creeks and wetlands across the U.S.
The rule, which took effect Monday, narrows the types of waterways that qualify for federal protection under the half-century-old Clean Water Act. As a result, critics say the number of waterways across the Navajo Nation and other arid states in the West that were previously protected under the act have been drastically reduced.
Public health advocates, environmentalists and some Western states, among other opponents, had promised court fights once the rule was imposed, saying the rollback will leave many of the nation’s millions of miles of waterways more vulnerable to pollution.
“At this point in time, with climate change occurring around the world, it’s more prudent than ever to protect our land, water and air,” said Navajo President Jonathan Nez. “We, as Diné People, have a duty to preserve and conserve our natural resources to ensure that our future generations have access to clean water, air and land.”
The tribe filed its claim Monday in U.S. District Court in New Mexico.
Amigos Bravos, the New Mexico Acequia Association and the Gila Resources Information Project followed with their own appeal Tuesday and the Environmental Integrity Project filed a separate claim in Washington, D.C. on behalf of four other environmental groups. The cases name the U.S. Environmental Protection Agency and the Army Corps of Engineers, the federal agencies in charge of administering aspects of the rule…
Paula Garcia, the executive director of the New Mexico Acequia Association, said communities around the state rely on traditional irrigation systems that are fed by snow, rain and runoff for crops and livestock. With protections removed for the seasonal waterways that feed the acequia systems, she said agricultural livelihoods will be put at risk.
Rachel Conn with Amigos Bravos said the rule protects the interests of polluters. “The Trump administration has opened the pollution floodgates,” she said.
Under the new regulation, permits are no longer necessary for discharging pollution into many rivers, lakes and streams. Charles de Saillan, an attorney at the New Mexico Environmental Law Center, said the effects could be felt by a number of businesses, from rafting companies to community farmers.
On the Navajo reservation, which spans parts of New Mexico, Arizona and Utah, officials say there already are businesses not complying with tribal and federal environmental laws and the revised rule won’t help bring them into compliance…
New Mexico was among the states that went to court in May seeking to keep the rule from taking effect.
At the time, New Mexico Environment Secretary James Kenney warned that the rule would leave nearly 90% of the state’s rivers and streams and about 40% of its wetlands without federal protection. He predicted that would “devastate New Mexico’s scarce and limited water resources.”
The state had pointed out in comments previously submitted to the federal government that New Mexico has no state protections to fall back on. New Mexico is one of three states that don’t have delegated authority from the EPA to regulate discharges of pollution into rivers, streams, and lakes.
New Mexico Lakes, Rivers and Water Resources via Geology.com.
FromCronkite News (Ellie Borst) via Indian Country Today:
Two Arizona tribes and a Phoenix-based advocacy group joined a pair of lawsuits this week to reverse a Trump administration clean-water rule that critics said would open the “vast majority of Arizona’s waterways” to pollution and degradation.
The suits were filed Monday, the same day a new Environmental Protection Agency rule took effect replacing an Obama-era rule that expanded federal oversight to include seasonal and other waterways.
Critics said the old rule placed a huge burden on farmers and landowners and they unveiled the Trump administration plan in January as a “commonsense” solution.
But the lawsuits – one joined by Mi Familia Vota and the other by the Pascua Yaqui tribe and Tohono O’odham Nation – say the Trump administration’s replacement has virtually no protection, and that Americans “stand to lose their most important resource: clean water.” Mi Familia Vota CEO Hector Sanchez Barba derided the new regulation as the “Dirty Water Rule.”
“The widespread negative community impacts of the Dirty Water Rule are another demonstration that Trump’s Environmental Protection Agency is not interested in protecting scientifically critical sources of water in our neighborhoods, communities, and states from polluting corporations,” Sanchez Barba said in a statement.
The suits are just the latest efforts to block the Navigable Waters Protection Rule, after a federal district judge in the Northern District of California on Friday rejected a push by 17 states to block implementation of the rule.
That allowed the rule to take effect except in Colorado: It had pursued its own case and won approval from a federal judge, also on Friday, blocking the Trump administration rule in that state…
Molly Block, EPA assistant deputy associate administrator for policy, said the agency is reviewing the latest lawsuits, but thanked the district judge in California for upholding the navigable waters rule last week.
“EPA and the Army are confident that the new rule provides much-needed regulatory certainty for farmers, landowners, and businesses and protects the Nation’s navigable waters while striking an appropriate balance between federal and state authority over aquatic resources,” Block wrote in the email.
Brad Johnson, a wetland ecologist for the Rocky Mountain Fen Research Project, takes groundwater measurements at the research site near Leadville, while his dogs, Katie and Hayden watch. The cities of Aurora and Colorado Springs are looking to develop additional water in Eagle County and divert it to the Front Range. Photo credit: Sarah Tory/Aspen Journalism
On behalf of the State of Colorado, Attorney General Phil Weiser today filed a lawsuit in federal district court in Denver to protect Colorado’s streams and wetlands from a dangerous federal rule that would leave them vulnerable to pollution under the Clean Water Act.
By radically changing how the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers define “waters of the United States” that are protected under the Clean Water Act, the new 2020 rule will leave a substantial portion of Colorado’s streams and wetlands without federal protection and jeopardize the integrity and quality of Colorado’s waters.
“The federal government’s new definition of ‘waters of the United States’ violates the Clean Water Act, contravenes controlling U.S. Supreme Court precedent, and ignores sound science,” Weiser said. “This illegal action shirks the federal government’s responsibility to implement this law and thrusts on Colorado the responsibility of protecting water quality with limited warning and with no support to do so. We are bringing this lawsuit to stop this new rule and reckless action from taking effect.”
The Clean Water Act protects U.S. streams, wetlands, and rivers from pollution. Previously, under Supreme Court precedent, the rule included ephemeral streams—streams that run because of melting snow or precipitation—and wetlands that aren’t connected on the surface to larger bodies of water.
“We need to challenge this action to avoid a bigger problem for our economy at a time when our state is already hurting from COVID-19. Some flood control, stormwater erosion, transportation, and other important projects may not be able to move forward because the new rule takes away the permitting path needed to ensure environmental protection and project development. That’s a problem that we need to fix,” said John Putnam, Environmental Programs Director, Colorado Department of Public Health and Environment.
The new 2020 rule does not include many ephemeral streams or wetlands without a surface connection. The lawsuit states that the new, narrower definition of the types of water protected under the Clean Water Act eliminates federal jurisdiction over a significant number of Colorado’s tributaries, adjacent waters, and wetlands that affect downstream waters, without providing any rational basis for the rule. This leaves Colorado’s snowmelt streams and wetlands vulnerable to pollution, which would negatively impact our state’s agriculture and outdoor recreation economy.
Through the lawsuit, Colorado is asking the court to maintain the definition in place since the 1980s and to stop the new, unlawful rule from going into effect. In so doing, Colorado is following up on its comment to the agencies, which praised earlier 2008 guidance as legally sound and grounded in science. Maintaining the status quo will also protect important agriculture exemptions, respect state authority to administer water rights, and provide the appropriate level of federal partnership.
Two separate coalitions of environmental advocacy groups filed litigation on Wednesday against the U.S. Environmental Protection Agency and the Army Corps of Engineers challenging the Trump Administration’s rollback of the Clean Water Act.
At the core of the litigation is the definition of federally protected waterways, as recent changes in regulatory language have reduced legal protections for huge numbers of streams, especially around the arid West…
“This regulation is plainly unlawful. It violates the simple but powerful mandate of the Clean Water Act to protect the integrity of our nation’s waters,” Jon Devine, the Natural Resources Defense Council’s director of federal water policy, said in a statement announcing one of the legal petitions.
The NRDC — joined by seven other environmental groups from Wisconsin, New Mexico and elsewhere — filed a challenge in a federal district court in Massachusetts.
The other lawsuit was launched by more than a dozen national and local environmental organizations in the federal district court in South Carolina. It claims that the EPA and the Army Corps “neglected fundamental rulemaking requirements meant to constrain whimsical agency action.”
The Environmental Protection Agency and the Department of the Army published April 21 in the Federal Register the final replacement rule defining what waters are federally regulated under the Clean Water Act. The rule, which is set to take effect June 22, had been met with both support and promises of legal action.
The EPA and Department of the Army have 60 days to respond to the lawsuit.
The groups that joined in the legal challenge include the North Carolina Coastal Federation, which publishes Coastal Review Online, along with American Rivers, Charleston Waterkeeper, Chattahoochee Riverkeeper, Clean Water Action, Defenders of Wildlife, Environment America, Friends of the Rappahannock, James River Association, National Wildlife Federation, North Carolina Wildlife Federation, Public Employees for Environmental Responsibility, Roanoke River Basin Association and South Carolina Coastal Conservation League.
“We are particularly concerned that many wetlands along our coast will no longer be regulated by the federal government,” said Todd Miller, executive director of the Coastal Federation.
“These areas include pocosins, Carolina Bays and other forested wetlands. These wetlands protect water quality in our coastal estuaries and reduce floods during storms. Current wetland rules, that have been in place for decades, balance the needs of landowners with these environmental and economic benefits,” he continued. “Losing this oversight by adoption of these new rules will result in more water pollution, less fish, and more costly disasters in coming years.”
[…]
The administration’s Navigable Waters Protection Rule is the second step in revising the definition of the scope of waters subject to federal regulation under the Clean Water Act and repeals the 2015 Clean Water Rule: Definition of “Waters of the United States,” often called “WOTUS.” The final rule “recognizes that waters of the United States are those within the ordinary meaning of the term, such as oceans, rivers, streams, lakes, ponds, and wetlands, and that not all waters are waters of the United States,” according to the April 21 document.
The final rule specifically states that waters of the United States do not include groundwater; ephemeral, or impermanent, streams, swales, gullies, rills and pools made by rain; diffuse stormwater runoff, which is rainwater that spreads across the landscape, and features that control stormwater; previously converted croplands; ditches that are not traditional navigable waters, tributaries, or that are not constructed in adjacent wetlands; and other exclusions.
Photo credit from report “A Preliminary Evaluation of Seasonal Water Levels Necessary to Sustain Mount Emmons Fen: Grand Mesa, Uncompahgre and Gunnison National Forests,” David J. Cooper, Ph.D, December 2003.
Environmental activists got an unwelcome gift from the federal government on the eve of the fiftieth anniversary of Earth Day, when officials with the Environmental Protection Agency revoked clean-water protections for thousands of streams across Colorado. Now advocates and state officials are taking President Donald Trump’s administration to court.
One of many bedrock environmental laws targeted for rollbacks by the Trump administration, the Clean Water Act has protected the “waters of the United States,” including rivers, lakes, streams and wetlands, since its passage in 1972. But a rule change announced by the Trump administration on April 21 would dramatically narrow the definition of those “waters,” removing protections for many wetlands and smaller, intermittent streams, and potentially threatening ecosystems and drinking water supplies…
The EPA’s decision will hit especially hard in Colorado and other Western states where water is already a precious resource. The new rule excludes all “ephemeral” streams, which only flow after rainfall or snowmelt, and some “intermittent” streams, which only flow for part of the year. An estimated 55 percent of streams in Colorado are classified as intermittent or ephemeral, according to conservation group Trout Unlimited…
Under the new rule, which will formally take effect on June 20, developers and industrial interests will be able to build in many wetland areas or near ephemeral streams without applying for Clean Water Act permits. That could dramatically speed up construction of projects like oil and gas pipelines, while environmental-review processes are significantly weakened.
“Lobbyists for corporate agribusiness, developers, and the oil and gas industry have long demanded that federal protections be removed for streams and wetlands,” says Hannah Collazo, director of Environment Colorado. “This is just plain wrong. Clean water is vital for our health, our way of life, and for nature itself.”
Environmental groups have already announced plans to sue over what they call Trump’s “Dirty Water Rule,” and so has Colorado Attorney General Phil Weiser, who said in a statement that the administration’s decision is “based on flawed legal reasoning and lacks a scientific basis.”
Photo credit from report “A Preliminary Evaluation of Seasonal Water Levels Necessary to Sustain Mount Emmons Fen: Grand Mesa, Uncompahgre and Gunnison National Forests,” David J. Cooper, Ph.D, December 2003.
Attorney General Phil Weiser released the following statement regarding the final Waters of the United States rule that the U.S. Environmental Protection Agency and Army Corps of Engineers released today:
“The federal government’s final Waters of the United States rule is too limited and excludes a significant percentage of Colorado’s waters from Clean Water Act protections. The final rule threatens to create unacceptable impacts to the state’s ability to protect our precious state water resources, and, in the absence of extraordinary state efforts to fill the gaps left by the federal government, will harm Colorado’s economy and water quality.
“We are pleased the final rule protects important agriculture exemptions and provides continued assurance that states retain authority and primary responsibility over land and water resources that are important to Colorado. However, the federal government’s decision to remove from federal oversight ephemeral waters, certain intermittent streams, and many wetlands is based on flawed legal reasoning and lacks a scientific basis.
“We are going to take legal action to protect Colorado waters and prevent the harmful aspects of the final rule from taking effect here.”
Fen soils are made of a rich, organic peat material that take thousands of years to form and require a constant groundwater source to survive. At the Rocky Mountain Fen Research Project, scientists transplanted fen soils from another site to the “receiver” site south of Leadville where they restored a groundwater spring to sustain the transplanted soils. Photo credit: Sarah Tory/Aspen Journalism
FromThe Grand Junction Daily Sentinel (Dennis Webb):
The Environmental Protection Agency and Army Corps of Engineers published the new rule Tuesday in the Federal Register, after announcing its components in January. It takes effect June 22.
Much of the ongoing dispute surrounds how “waters of the United States” are defined in implementing the Clean Water Act.
The Trump administration says its new rule applies to territorial seas and traditional navigable waters, perennial and intermittent tributaries to those waters, wetlands adjacent to waters falling under the rule’s jurisdiction, and some lakes, ponds and impoundments. Groundwater, ephemeral streams that flow only due to rainfall, many ditches and prior converted cropland are among waters exempted from the rule.
Weiser and the administration of fellow Democrat Gov. Jared Polis don’t totally oppose the new rule, praising its agricultural exemptions and saying it recognizes state authority…
The Colorado Department of Public Health and Environment says the rule eliminates many federal protections and almost 70% of Colorado waters could be impacted by the rule.
Click on the image to go to the John Hopkins website for the latest data.
FromThe Washington Post (Yasmeen Abutaleb, Josh Dawsey, Ellen Nakashima and Greg Miller). Click through and read the whole article. Here’s an excerpt:
By the time Donald Trump proclaimed himself a wartime president — and the coronavirus the enemy — the United States was already on course to see more of its people die than in the wars of Korea, Vietnam, Afghanistan and Iraq combined.
The country has adopted an array of wartime measures never employed collectively in U.S. history — banning incoming travelers from two continents, bringing commerce to a near-halt, enlisting industry to make emergency medical gear, and confining 230 million Americans to their homes in a desperate bid to survive an attack by an unseen adversary.
Despite these and other extreme steps, the United States will likely go down as the country that was supposedly best prepared to fight a pandemic but ended up catastrophically overmatched by the novel coronavirus, sustaining heavier casualties than any other nation.
It did not have to happen this way. Though not perfectly prepared, the United States had more expertise, resources, plans and epidemiological experience than dozens of countries that ultimately fared far better in fending off the virus.
The failure has echoes of the period leading up to 9/11: Warnings were sounded, including at the highest levels of government, but the president was deaf to them until the enemy had already struck.
The Trump administration received its first formal notification of the outbreak of the coronavirus in China on Jan. 3. Within days, U.S. spy agencies were signaling the seriousness of the threat to Trump by including a warning about the coronavirus — the first of many — in the President’s Daily Brief.The Trump administration received its first formal notification of the outbreak of the coronavirus in China on Jan. 3. Within days, U.S. spy agencies were signaling the seriousness of the threat to Trump by including a warning about the coronavirus — the first of many — in the President’s Daily Brief.
And yet, it took 70 days from that initial notification for Trump to treat the coronavirus not as a distant threat or harmless flu strain well under control, but as a lethal force that had outflanked America’s defenses and was poised to kill tens of thousands of citizens. That more-than-two-month stretch now stands as critical time that was squandered.
Trump’s baseless assertions in those weeks, including his claim that it would all just “miraculously” go away, sowed significant public confusion and contradicted the urgent messages of public health experts.
“While the media would rather speculate about outrageous claims of palace intrigue, President Trump and this Administration remain completely focused on the health and safety of the American people with around the clock work to slow the spread of the virus, expand testing, and expedite vaccine development,” said Judd Deere, a spokesman for the president. “Because of the President’s leadership we will emerge from this challenge healthy, stronger, and with a prosperous and growing economy.”
But the president’s behavior and combative statements were merely a visible layer on top of deeper levels of dysfunction.
The most consequential failure involved a breakdown in efforts to develop a diagnostic test that could be mass produced and distributed across the United States, enabling agencies to map early outbreaks of the disease, and impose quarantine measure to contain them. At one point, a Food and Drug Administration official tore into lab officials at the Centers for Disease Control and Prevention, telling them their lapses in protocol, including concerns that the lab did not meet the criteria for sterile conditions, were so serious that the FDA would “shut you down” if the CDC were a commercial, rather than government, entity.
Other failures cascaded through the system. The administration often seemed weeks behind the curve in reacting to the viral spread, closing doors that were already contaminated. Protracted arguments between the White House and public health agencies over funding, combined with a meager existing stockpile of emergency supplies, left vast stretches of the country’s health-care system without protective gear until the outbreak had become a pandemic. Infighting, turf wars and abrupt leadership changes hobbled the work of the coronavirus task force…
Even the president’s base has begun to confront this reality. In mid-March, as Trump was rebranding himself a wartime president, and belatedly urging the public to help slow the spread of the virus, Republican leaders were poring over grim polling data that suggested Trump was lulling his followers into a false sense of security in the face of a lethal threat.
The poll showed that far more Republicans than Democrats were being influenced by Trump’s dismissive depictions of the virus and the comparably scornful coverage on Fox News and other conservative networks. As a result, Republicans were in distressingly large numbers refusing to change travel plans, follow “social distancing” guidelines, stock up on supplies or otherwise take the coronavirus threat seriously…
On Jan. 6, Redfield sent a letter to the Chinese offering to send help, including a team of CDC scientists. China rebuffed the offer for weeks, turning away assistance and depriving U.S. authorities of an early chance to get a sample of the virus, critical for developing diagnostic tests and any potential vaccine.
China impeded the U.S. response in other ways, including by withholding accurate information about the outbreak. Beijing had a long track record of downplaying illnesses that emerged within its borders, an impulse that U.S. officials attribute to a desire by the country’s leaders to avoid embarrassment and accountability with China’s 1.3 billion people and other countries that find themselves in the pathogen’s path.
China stuck to this costly script in the case of the coronavirus, reporting Jan. 14 that it had seen “no clear evidence of human-to-human transmission.” U.S. officials treated the claim with skepticism that intensified when the first case surfaced outside China with a reported infection in Thailand…
A week earlier, senior officials at HHS had begun convening an intra-agency task force including Redfield, Azar and Anthony S. Fauci, director of the National Institute of Allergy and Infectious Diseases. The following week, there were also scattered meetings at the White House with officials from the National Security Council and State Department, focused mainly on when and whether to bring back government employees in China.
U.S. officials began taking preliminary steps to counter a potential outbreak. By mid-January, Robert Kadlec, an Air Force officer and physician who serves as assistant secretary for preparedness and response at HHS, had instructed subordinates to draw up contingency plans for enforcing the Defense Production Act, a measure that enables the government to compel private companies to produce equipment or devices critical to the country’s security. Aides were bitterly divided over whether to implement the act, and nothing happened for many weeks…
Despite the flurry of activity at lower levels of his administration, Trump was not substantially briefed by health officials about the coronavirus until Jan.18, when, while spending the weekend at Mar-a-Lago, he took a call from Azar.
But the secretary, who had a strained relationship with Trump and many others in the administration, assured the president that those responsible were working on and monitoring the issue. Azar told several associates that the president believed he was “alarmist” and Azar struggled to get Trump’s attention to focus on the issue, even asking one confidant for advice.
Within days, there were new causes for alarm…
On Jan. 21, a Seattle man who had recently traveled to Wuhan tested positive for the coronavirus, becoming the first known infection on U.S. soil. Then, two days later, Chinese authorities took the drastic step of shutting down Wuhan, turning the teeming metropolis into a ghost city of empty highways and shuttered skyscrapers, with millions of people marooned in their homes.
“That was like, whoa!,” said a senior U.S. official involved in White House meetings on the crisis. “That was when the Richter scale hit 8.”
It was also when U.S. officials began to confront the failings of their own efforts to respond.
Azar, who had served in senior positions at HHS through crises including the 9/11 terrorist attacks and the outbreak of Bird Flu in 2005, was intimately familiar with the playbook for crisis management.
He instructed subordinates to move rapidly to establish a nationwide surveillance system to track the spread of the coronavirus — a stepped-up version of what the CDC does every year to monitor new strains of the ordinary flu.
But doing so would require assets that would elude U.S. officials for months — a diagnostic test that could accurately identify those infected with the new virus and be produced on a mass scale for rapid deployment across the United States, and money to implement the system.
Azar’s team also hit another obstacle. The Chinese were still refusing to share the viral samples they had collected and were using to develop their own tests. In frustration, U.S. officials looked for other possible routes…
But in other ways, the situation was already spinning out of control, with multiplying cases in Seattle, intransigence by the Chinese, mounting questions from the public, and nothing in place to stop infected travelers from arriving from abroad.
Trump was out of the country for this critical stretch, taking part in the annual global economic forum in Davos, Switzerland. He was accompanied by a contingent of top officials including national security adviser Robert O’Brien, who took an anxious trans-Atlantic call from Azar.
Azar told O’Brien that it was “mayhem” at the White House, with HHS officials being pressed to provide nearly identical briefings to three audiences on the same day.
Azar urged O’Brien to have the NSC assert control over a matter with potential implications for air travel, immigration authorities, the State Department and the Pentagon. O’Brien seemed to grasp the urgency, and put his deputy, Matthew Pottinger, who had worked in China as a journalist for the Wall Street Journal, in charge of coordinating the still-nascent U.S. response.
But the rising anxiety within the administration appeared not to register with the president. On Jan. 22, Trump received his first question about the coronavirus in an interview on CNBC while in Davos. Asked whether he was worried about a potential pandemic, Trump said, “No. Not at all. And we have it totally under control. It’s one person coming in from China. . . . It’s going to be just fine.”
[…]
Trump has, with some justification, pointed to the China-related restriction as evidence that he had responded aggressively and early to the outbreak. It was among the few intervention options throughout the crisis that played to the instincts of the president, who often seems fixated on erecting borders and keeping foreigners out of the country.
But by that point, 300,000 people had come into the United States from China over the previous month. There were only 7,818 confirmed cases around the world at the end of January, according to figures released by the World Health Organization — but it is now clear that the virus was spreading uncontrollably.
Pottinger was by then pushing for another travel ban, this time restricting the flow of travelers from Italy and other nations in the European Union that were rapidly emerging as major new nodes of the outbreak. Pottinger’s proposal was endorsed by key health-care officials, including Fauci, who argued that it was critical to close off any path the virus might take into the country.
This time, the plan met with resistance from Treasury Secretary Steven Mnuchin and others who worried about the impact on the U.S. economy. It was an early sign of tension in an area that would split the administration, pitting those who prioritized public health against those determined to avoid any disruption in an election year to the run of expansion and employment growth.
Those backing the economy prevailed with the president. And it was more than a month before the administration issued a belated and confusing ban on flights into the United States from Europe. Hundreds of thousands of people crossed the Atlantic during that interval…
A national stockpile of N95 protective masks, gowns, gloves and other supplies was already woefully inadequate after years of underfunding. The prospects for replenishing that store were suddenly threatened by the unfolding crisis in China, which disrupted offshore supply chains.
Much of the manufacturing of such equipment had long since migrated to China, where factories were now shuttered because workers were on order to stay in their households. At the same time, China was buying up masks and other gear to gird for its own coronavirus outbreak, driving up costs and monopolizing supplies.
In late January and early February, leaders at HHS sent two letters to the White House Office of Management and Budget asking to use its transfer authority to shift $136 million of department funds into pools that could be tapped for combating the coronavirus. Azar and his aides also began raising the need for a multibillion-dollar supplemental budget request to send to Congress.
Yet White House budget hawks argued that appropriating too much money at once when there were only a few U.S. cases would be viewed as alarmist.
Joe Grogan, head of the Domestic Policy Council, clashed with health officials over preparedness. He mistrusted how the money would be used and questioned how health officials had used previous preparedness funds…
But again, delays proved costly. The disputes meant that the United States missed a narrow window to stockpile ventilators, masks and other protective gear before the administration was bidding against many other desperate nations, and state officials fed up with federal failures began scouring for supplies themselves.
In late March, the administration ordered 10,000 ventilators — far short of what public health officials and governors said was needed. And many will not arrive until the summer or fall, when models expect the pandemic to be receding…
Although viruses travel unseen, public health officials have developed elaborate ways of mapping and tracking their movements. Stemming an outbreak or slowing a pandemic in many ways comes down to the ability to quickly divide the population into those who are infected and those who are not.
Doing so, however, hinges on having an accurate test to diagnose patients and deploy it rapidly to labs across the country. The time it took to accomplish that in the United States may have been more costly to American efforts than any other failing.
“If you had the testing, you could say, ‘Oh my god, there’s circulating virus in Seattle, let’s jump on it. There’s circulating virus in Chicago, let’s jump on it,’ ” said a senior administration official involved in battling the outbreak. “We didn’t have that visibility.”
The first setback came when China refused to share samples of the virus, depriving U.S. researchers of supplies to bombard with drugs and therapies in a search for ways to defeat it. But even when samples had been procured, the U.S. effort was hampered by systemic problems and institutional hubris.
Among the costliest errors was a misplaced assessment by top health officials that the outbreak would probably be limited in scale inside the United States — as had been the case with every other infection for decades — and that the CDC could be trusted on its own to develop a coronavirus diagnostic test.
The CDC, launched in the 1940s to contain an outbreak of malaria in the southern United States, had taken the lead on the development of diagnostic tests in major outbreaks including Ebola, Zika and H1N1. But the CDC was not built to mass-produce tests.
The CDC’s success had fostered an institutional arrogance, a sense that even in the face of a potential crisis there was no pressing need to involve private labs, academic institutions, hospitals and global health organizations also capable of developing tests.
Yet some were concerned that the CDC test would not be enough. Stephen Hahn, the FDA commissioner, sought authority in early February to begin calling private diagnostic and pharmaceutical companies to enlist their help.
But when senior FDA officials consulted leaders at HHS, Hahn, who had led the agency for about two months, was told to stand down. There were concerns about him personally contacting companies regulated by his agency.
At that point, Azar, the HHS secretary, seemed committed to a plan he was pursuing that would keep his agency at the center of the response effort: securing a test from the CDC and then building a national coronavirus surveillance system by relying on an existing network of labs used to track the ordinary flu.
In task force meetings, Azar and Redfield pushed for $100 million to fund the plan, but were shot down because of the cost, according to a document outlining the testing strategy obtained by The Washington Post…
On Feb. 6, when the World Health Organization reported that it was shipping 250,000 test kits to labs around the world, the CDC began distributing 90 kits to a smattering of state-run health labs.
Almost immediately, the state facilities encountered problems. The results were inconclusive in trial runs at more than half the labs, meaning they couldn’t be relied upon to diagnose actual patients. The CDC issued a stopgap measure, instructing labs to send tests to its headquarters in Atlanta, a practice that would delay results for days.
The scarcity of effective tests led officials to impose constraints on when and how to use them, and delayed surveillance testing. Initial guidelines were so restrictive that states were discouraged from testing patients exhibiting symptoms unless they had traveled to China and come into contact with a confirmed case, when the pathogen had by that point almost certainly spread more broadly into the general population.
The limits left top officials largely blind to the true dimensions of the outbreak.
In a meeting in the Situation Room in mid-February, Fauci and Redfield told White House officials that there was no evidence yet of worrisome person-to-person transmission in the United States. In hindsight, it appears almost certain that the virus was taking hold in communities at that point. But even the country’s top experts had little meaningful data about the domestic dimensions of the threat. Fauci later conceded that as they learned more their views changed.
At the same time the president’s subordinates were growing increasingly alarmed, Trump continued to exhibit little concern. On Feb. 10, he held a political rally in New Hampshire attended by thousands where he declared that “by April, you know, in theory, when it gets a little warmer, it miraculously goes away.”
The New Hampshire rally was one of eight that Trump held after he had been told by Azar about the coronavirus, a period when he also went to his golf courses six times…
On Feb. 29, a Washington state man became the first American to die of a coronavirus infection. That same day, the FDA released guidance, signaling that private labs were free to proceed in developing their own diagnostics.
Another four-week stretch had been squandered…
One week later, on March 6, Trump toured the facilities at the CDC wearing a red “Keep America Great” hat. He boasted that the CDC tests were nearly perfect and that “anybody who wants a test will get a test,” a promise that nearly a month later remains unmet.
He also professed to have a keen medical mind. “I like this stuff. I really get it,” he said. “People here are surprised that I understand it. Every one of these doctors said, ‘How do you know so much about this?’ ”
In reality, many of the failures to stem the coronavirus outbreak in the United States were either a result of, or exacerbated by, his leadership.
For weeks, he had barely uttered a word about the crisis that didn’t downplay its severity or propagate demonstrably false information. He dismissed the warnings of intelligence officials and top public health officials in his administration.
At times, he voiced far more authentic concern about the trajectory of the stock market than the spread of the virus in the United States, railing at the chairman of the Federal Reserve and others with an intensity that he never seemed to exhibit about the possible human toll of the outbreak.
In March, as state after state imposed sweeping new restrictions on their citizens’ daily lives to protect them — triggering severe shudders in the economy — Trump second-guessed the lockdowns…
Two days later, Trump finally ordered the halt to incoming travel from Europe that his deputy national security adviser had been advocating for weeks. But Trump botched the Oval Office announcement so badly that White House officials spent days trying to correct erroneous statements that triggered a stampede by U.S. citizens overseas to get home…
Trump spent many weeks shuffling responsibility for leading his administration’s response to the crisis, putting Azar in charge of the task force at first, relying on Pottinger, the deputy national security adviser, for brief periods, before finally putting Vice President Pence in the role toward the end of February.
Other officials have emerged during the crisis to help right the United States’ course, and at times the statements of the president. But even as Fauci, Azar and others sought to assert themselves, Trump was behind the scenes turning to others with no credentials, experience or discernible insight in navigating a pandemic.
Foremost among them was his adviser and son-in-law, Jared Kushner. A team reporting to Kushner commandeered space on the seventh floor of the HHS building to pursue a series of inchoate initiatives.
One plan involved having Google create a website to direct those with symptoms to testing facilities that were supposed to spring up in Walmart parking lots across the country, but which never materialized. Another centered an idea advanced by Oracle Chairman Larry Ellison to use software to monitor the unproven use of anti-malaria drugs against the coronavirus pathogen.
So far, the plans have failed to come close to delivering on the promises made when they were touted in White House news conferences. The Kushner initiatives have, however, often interrupted the work of those under immense pressure to manage the U.S. response.
Current and former officials said that Kadlec, Fauci, Redfield and others have repeatedly had to divert their attentions from core operations to contend with ill-conceived requests from the White House they don’t believe they can ignore. And Azar, who once ran the response, has since been sidelined, with his agency disempowered in decision-making and his performance pilloried by a range of White House officials, including Kushner.If the coronavirus has exposed the country’s misplaced confidence in its ability to handle a crisis, it also has cast harsh light on the limits of Trump’s approach to the presidency — his disdain for facts, science and experience.
He has survived other challenges to his presidency — including the Russia investigation and impeachment — by fiercely contesting the facts arrayed against him and trying to control the public’s understanding of events with streams of falsehoods.
The coronavirus may be the first crisis Trump has faced in office where the facts — the thousands of mounting deaths and infections — are so devastatingly evident that they defy these tactics.
After months of dismissing the severity of the coronavirus, resisting calls for austere measures to contain it, and recasting himself as a wartime president, Trump seemed finally to succumb to the coronavirus reality. In a meeting with a Republican ally in the Oval Office last month, the president said his campaign no longer mattered because his reelection would hinge on his coronavirus response.
As a sociologist who studies agricultural issues, including farm labor, I believe that these workers face particular risks during the current pandemic that, if unaddressed, threaten keeping those grocery store shelves well stocked.
Essential labor
It is difficult to accurately count the number of hired agricultural laborers in the United States, but official sources place the number at 1 million to 2.7 million people, depending on the time of year.
Most of these workers are employed seasonally to perform the hard manual labor of cultivating and harvesting crops. One-half to three-quarters of them were born outside of the United States, with the majority holding Mexican citizenship.
The H-2A visa program authorizes noncitizen agricultural laborers to work in the United States. This program allows farmers to recruit workers for seasonal agricultural jobs, provided the workers return home within 10 months.
But the H-2A program doesn’t cover enough workers to meet the needs of the food system. In 2018, only 243,000 visas were issued under the program – far less than the total number of workers needed to power the farm economy.
Government research suggests that approximately half of the remaining workers on U.S. farms are in the United States without legal authorization. These workers often live in the U.S. year-round, choosing to be in legal limbo rather than risk crossing an increasingly policed border. Some travel from state to state, following the harvest cycle of crops.
The mostly undocumented workers not covered by H-2A visas frequently work for labor contractors, who arrange for their transportation to work sites in shared vans or trucks.
This near-constant physical proximity to one another can facilitate the rapid transmission of the coronavirus.
Seriously susceptible
The nature of their work also makes farmworkers especially susceptible to serious coronavirus infections.
Although COVID-19 tends to be most severe in the elderly and people with underlying health conditions, farm laborers face working conditions that may elevate the risk for severe disease.
Moreover, farmworkers face a number of barriers to accessing medical care, ranging from linguistic and cultural differences to lack of reliable transportation to the limited number of medical facilities in many rural communities.
These barriers are especially high for the many undocumented farmworkers, who are not eligible for insurance coverage through the Affordable Care Act, which does cover workers on H-2A visas.
Finally, the labor contractors who employ undocumented workers generally pay only for work that is completed. This means that a day at the doctor’s office is a day without pay – no small sacrifice for a worker making less than $18,000 a year.
Impact on the food supply
But what would an outbreak of COVID-19 among farmworkers mean for the food system?
However, widespread infections among farmworkers could make it difficult for farmers to harvest crops. Even before the pandemic, farmers in many agricultural areas were already struggling with labor shortages.
Eventually, consumers could begin to see the impact of any labor shortages in the form of higher prices or shortages of products ranging from strawberries and lettuce to meat and dairy.
There’s no easy solution, but a good start would be ensuring farmworkers are able to follow effective social distancing guidelines, are wearing protective gloves and masks, and are able to get the medical care they need without fear of lost wages or deportation.
Americans depend on these laborers to continue putting food on their tables during this crisis. A little support would go a long way.
Graph via Institute for Health Metrics and Evaluation. Click on the image to go to the website for updated data.
FromThe Denver Post (John Aguilar) via The Greeley Tribune:
Colorado health officials are finalizing guidelines to help doctors on the front lines of the coronavirus crisis make the excruciating choices about how to prioritize care for COVID-19 patients should the pandemic overwhelm the capacity of the state’s hospital system.
Julie Lonborg, a spokeswoman for the Colorado Hospital Association, said the state’s medical network is currently “not anywhere near capacity” but the growing numbers of coronavirus cases in the state — the latest tally Tuesday was 2,966 cases and 509 people hospitalized with COVID-19 — could quickly change that situation.
“We have to get ready for it to be a lot of patients all at once,” Lonborg said.
That kind of surge could lead to the nightmare scenarios that have most notably played out in northern Italy, where doctors have been forced to decide which critical patients get scarce equipment and staffing to keep them alive.
“There may be dire circumstances where our resources are unable or are insufficient to provide optimal care to everyone,” said Dr. Darlene Tad-y, a physician at the University of Colorado Hospital in Aurora who serves on the Governor’s Expert Emergency Epidemic Response Committee, or GEEERC. “Should we reach that moment, I hope community members will feel we have done our due diligence in using the utmost sense of fairness and ethics in what we write.”
The 19-member GEEERC is in the midst of finalizing recommendations for how to put in play the Colorado Crisis Standards of Care Plan, a set of emergency protocols meant to help caregivers manage a health crisis when “demands related to patient care and public health needs radically exceed available resources.”
“This is statewide guidance on how to do triage in the most ethically defensible way,” said Dr. Matthew Wynia, director of the Center for Bioethics and Humanities at the CU Anschutz Medical Campus.
It’s expected that the group will forward its report to the governor’s office in the next week to 10 days.
At the core of the guidelines is the acknowledgment that when things get desperate — like there’s a shortage of hospital beds, ventilators or medical staff — “there may be circumstances in which resources should be diverted from patients with a lower likelihood of benefit to those with a greater likelihood to benefit,” according to the 2018 Colorado Department of Public Health and Environment’s All Hazards Internal Emergency Response and Recovery Plan.
But how those patient care priorities are determined is critical, said Julie Reiskin, executive director of the Colorado Cross-Disability Coalition.
“We don’t want assumptions made about quality of life — that because someone has an underlying condition or a disability they have less to offer,” she said. “We don’t want them to use a disability characteristic that is not relevant to the pandemic (to deny care). It has to be scientifically based and not based on the assumption or belief about the value of someone’s life.”
[…]
Tad-y, the CU doctor who sits on GEEERC, said Colorado’s approach to critical care is not to look at categories of people but at an individual’s overall health condition and their likelihood to survive coronavirus.
“Primarily, we’re looking at the clinical status of our patients as it relates specifically to this illness,” she said.
As COVID-19 cases spread across Colorado, water utilities initiated emergency action plans, asking hundreds of employees to work from home to limit the virus’ spread and to help protect the workers needed to operate water treatment and delivery systems.
COVID-19 isn’t typically found in treated water systems, according to the U.S. Environmental Protection Agency and Centers for Disease Control and Prevention, because it is easily susceptible to the disinfectants used in standard water treatment systems.
“This virus is fragile,” said Jim Lochhead, CEO and manager of Denver Water, Colorado’s largest municipal water supplier. “The EPA and CDC and WHO [World Health Organization] have all put out guidance that drinking water systems that are treating water properly are perfectly safe. Our treatment protocols exceed federal and state standards and so we are doing better than we are required to do.”
Though water safety isn’t an issue in this pandemic, at least not yet, worker safety is.
In the heart of Colorado’s ski country, where COVID-19 cases have spread quickly, the Vail-based Eagle River Water and Sanitation District, as well as its sister agency the Upper Eagle Regional Water Authority, issued an emergency declaration March 13, a move that will allow them to apply for state and federal funds and extra equipment should they be needed.
The primary worry, said Eagle River District general manager Linn Brooks, is to prevent a rapid onset of COVID-19 among operations staff, something that could hamper the districts’ ability to ensure consistent water treatment and delivery.
“My biggest concern is that if it spreads quickly through our staff and we have a lot of people out, straining our capacity to do our work. Still, we could absorb a fair amount [of employee absences] before it impacts the service we provide,” Brooks said.
To date no Eagle River or Upper Eagle River District employees have tested positive for the virus nor is her district seeing high rates of absenteeism, Brooks said.
But the Eagle River District has imposed new sanitation and cleaning protocols at its plants and is requiring workers to stay home, with or without testing, if they exhibit any cold or flu-like symptoms. They can return to work only after they’ve been symptom free for at least 72 hours.
On the Front Range, Berthoud-based Northern Water, which serves more than 1 million agricultural and municipal customers, has also instituted emergency action plans, asking non-essential personnel to work from home and keeping operators on the job. Northern serves cities across the northern Front Range, including Fort Collins, Greeley, Boulder and Longmont, among others.
Northern offers workers unlimited sick leave as a matter course, while other utilities, such as Denver Water, are offering special administrative leave to employees who become ill to encourage them to remain home, allowing them to protect their personal vacation and sick time.
The pandemic has arrived just as the spring water delivery season begins. At least three regularly scheduled major water planning meetings across the state, used to inform the public and collect input on how much water should be made available for the year, have been cancelled.
“The hard part is getting the word out,” said Northern Water spokesman Jeff Stahla.
Northern’s board will make a decision April 9 on how much water will be delivered to users this year, based on final snowpack numbers and reservoir storage. But that meeting, like many others, may end up being conducted online or via conference call, Stahla said.
Colorado State of the River meetings, typically hosted by the Glenwood Springs-based Colorado River District, have also been postponed until further notice.
Back in Denver, Lochhead said his agency will remain in emergency mode “indefinitely.”
“We have calls every morning to assess. It’s a dynamic situation that changes daily if not hourly,” Lochhead said. “But in the uncertain world we’re in right now, the safety and reliability of the supply is the surest thing we have going.”
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at jerd@wateredco.org or @jerd_smith.
As the coronavirus pandemic exerts a tighter grip on the nation, critics of the Trump administration have repeatedly highlighted the administration’s changes to the nation’s pandemic response team in 2018 as a major contributor to the current crisis. This combines with a hiring freeze at the Centers for Disease Control and Prevention, leaving hundreds of positions unfilled. The administration also has repeatedly sought to reduce CDC funding by billions of dollars. Experts agree that the slow and uncoordinated response has been inadequate and has likely failed to mitigate the coming widespread outbreak in the U.S.
The Centers for Disease Control and Prevention in Atlanta, March 6, 2020. President Trump visited the CDC that day in an effort to calm fears about coronavirus. AP Photo/Ron Harris
Decades of underfunding
Spending on public health has historically proven to be one of humanity’s best investments. Indeed, some of the largest increases in life expectancy have come as the direct result of public health interventions, such as sanitation improvements and vaccinations.
However, despite their importance to national well-being, public health expenditures have been neglected at all levels. Since 2008, for example, local health departments have lost more than 55,000 staff. By 2016, only about 133,000 full-time equivalent staff remained. State funding for public health was lower in 2016-2017 than in 2008-2009. And the CDC’s prevention and public health budget has been flat and significantly underfunded for years. Overall, of the more than $3.5 trillion the U.S. spends annually on health care, a meager 2.5% goes to public health.
Not surprisingly, the nation has experienced a number of outbreaks of easily preventable diseases. Currently, we are in the middle of significant outbreaks of hepatitis A (more than 31,000 cases), syphilis (more than 35,000 cases), gonorrhea (more than 580,000 cases) and chlamydia (more than 1,750,000 cases). Our failure to contain known diseases bodes ill for our ability to rein in the emerging coronavirus pandemic.
Failures of health care systems
Yet while we have underinvested in public health, we have been spending massive and growing amounts of money on our medical care system. Indeed, we are spending more than any other country for a system that is significantly underperforming.
At any given time, this decrease in capacity does not pose much of a problem for the nation. Yet in the middle of a global pandemic, communities will face significant challenges without this surge capacity. If the outbreak mirrors anything close to what we have seen in other countries, “there could be almost six seriously ill patients for every existing hospital bed.” A worst-case scenario from the same study puts the number at 17 to 1. To make things worse, there will likely be a particular shortage ofunoccupied intensive care beds.
Of course, the lack of overall hospitals beds is not the most pressing issue. Hospitals also lack the levels of staffing and supplies needed to cope with a mass influx of patients. However, the lack of ventilators might prove the most daunting challenge.
Virginia Hollins-Davidson is taken away by a California Highway Patrol officer after she and other protesters blocked the door to the governor’s office during a protest by the Poor People’s Campaign at the Capitol, June 18, 2018, in Sacramento, Calif. AP Photo/Rich Pedroncelli
And of course, the U.S. heavily relies on private entities, mostly employers, to offer benefits taken for granted in other developed countries, including paid sick leave and child care. This arrangement leaves 1 in 4 American workers without paid sick leave, resulting in highly inequitable coverage. As a result, many low-income families struggle to make ends meet even when times are good.
Can the US adapt?
I believe that the limitations of the U.S. public health response and a potentially overwhelmed medical care system are likely going to be exacerbated by the blatant limitations of the U.S. welfare state. However, after weathering the current storm, I expect us to go back to business as usual relatively quickly. After all, that’s what happened after every previous pandemic, such as H1N1 in 2009 or even the 1918 flu epidemic.
The problems are in the incentive structure for elected officials. I expect that policymakers will remain hesitant to invest in public health, let alone revamp our safety net. While the costs are high, particularly for the latter, there are no buildings to be named, and no quick victories to be had. The few advocates for greater investments lack resources compared to the trillion-dollar interests from the medical sector.
Yet, if altruism is not enough, we should keep reminding policymakers that outbreaks of communicable diseases pose tremendous challenges for local health care systems and communities. They also create remarkable societal costs. The coronavirus serves as a stark reminder.
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Excess nitrogen and phosphorus in waterbodies, known as nutrient pollution, is a growing problem in Utah and across the country. Nutrients are linked to cyanobacterial growth, including harmful algal blooms, and can lower dissolved-oxygen levels in waterbodies, adversely affecting aquatic life. This pollution comes from a variety of sources, including wastewater treatment plants, nonpoint source pollution from agricultural operations, and residential and municipal stormwater runoff. Nutrient pollution poses a significant threat to Utah’s economic growth and quality of life, leading to substantial costs to the state and taxpayers if left unaddressed.
Here’s the release from the US Department of Agriculture:
U.S. Secretary of Agriculture Sonny Perdue today announced the Agriculture Innovation Agenda, a department-wide initiative to align resources, programs, and research to position American agriculture to better meet future global demands. Specifically, the U.S. Department of Agriculture (USDA) will stimulate innovation so that American agriculture can achieve the goal of increasing production by 40 percent while cutting the environmental footprint of U.S. agriculture in half by 2050.
“We know we have a challenge facing us: to meet future food, fiber, fuel, and feed demands with finite resources. USDA’s Agriculture Innovation Agenda is our opportunity define American agriculture’s role to feed everyone and do right as a key player in the solution to this challenge,” said Secretary Perdue. “This agenda is a strategic, department-wide effort to better align USDA’s resources, programs, and research to provide farmers with the tools they need to be successful. We are also continually mindful of the need for America’s agriculture industry to be environmentally, socially, and economically sustainable to maintain our position as a leader in the global effort to meet demand. We are committed as ever to the environmental sustainability and continued success, of America’s farmers, ranchers, foresters, and producers.”
BACKGROUND:
The first component of the Ag Innovation Agenda is to develop a U.S. ag-innovation strategy that aligns and synchronizes public and private sector research. The second component is to align the work of our customer-facing agencies and integrate innovative technologies and practices into USDA programs. The third component is to conduct a review of USDA productivity and conservation data. USDA already closely tracks data on yield, but on the environmental side, there’s some catching up to do. Finally, USDA has set benchmarks to hold us accountable. These targets will help measure progress toward meeting the food, fiber, fuel, feed, and climate demands of the future. Some of the benchmarks include:
Food loss and waste: Advance our work toward the United States’ goal to reduce food loss and waste by 50 percent in the United States by the year 2030.
Carbon Sequestration and Greenhouse Gas: Enhance carbon sequestration through soil health and forestry, leverage the agricultural sector’s renewable energy benefits for the economy, and capitalize on innovative technologies and practices to achieve net reduction of the agricultural sector’s current carbon footprint by 2050 without regulatory overreach.
Water Quality: Reduce nutrient loss by 30 percent nationally by 2050.
Renewable Energy: We can increase the production of renewable energy feedstocks and set a goal to increase biofuel production efficiency and competitiveness to achieve market-driven blend rates of 15% of transportation fuels in 2030 and 30% of transportation fuels by 2050.
The Santa Fe River starts high in the forests of New Mexico’s Sangre de Cristo mountains and flows 46 miles to the Rio Grande. Along the way it plays important roles for wildlife, irrigation, recreation and other cultural uses, and provides 40% of the water supply for the city of Santa Fe’s 85,000 residents.
But some stretches of the river don’t flow year-round, and that means parts of this vitally important water system could lose federal protections under changes to clean-water rules just passed by the Trump administration.
The administration’s new Navigable Waters Protection Rule replaces the Obama-era Waters of the U.S. (or WOTUS) rule that defined which waterways were protected under the Clean Water Act. The Obama administration broadened and clarified which waters were safe, but the new rule takes a much narrower view. Under the changes many waterways lose federal protection. That includes ephemeral streams and rivers that depend on seasonal precipitation — like parts of the Santa Fe — as well as waters that cross state boundaries and wetlands that aren’t adjacent to major water bodies.
This loss of protections means pesticides, mining waste, and other pollutants can be dumped into these streams and unconnected wetlands can be filled for development without running afoul of federal authorities…
The rule flies in the face of basic science about river ecology and groundwater, according to the Environmental Protection Agency’s own scientists. Even if streams don’t flow all the time or wetlands don’t touch major bodies of water, dumping pollutants into them can still harm the watershed — and by extension drinking water and wildlife.
The Trump administration promised these changes would offer more control to states, but many state officials say they find the new rules problematic, confusing and potentially dangerous.
“One of our biggest concerns with the final rule is that it’s not rooted in sound science,” says Rebecca Roose, water protection division director of the New Mexico Environment Department. “And there was really no attempt by the agency to reconcile the final rule with the scientific basis for the 2015 WOTUS rule and advice from the scientific community.”
While these changes will be felt in every state, they won’t be felt equally.
Public lands lovers have been up in arms since the Trump administration issued the final management plans for what’s left of Bears Ears National Monument. And the outrage is sowing confusion, along with headlines that imply that the plans “invite polluters into” the national monument, or that the “US plans to open millions of acres of public lands to cattle, drilling.”
That’s not quite right.
Every day, Trump and his plutocrats and sycophants give us plenty to be disgusted about. The new Bears Ears management plan, however, isn’t all that worthy of outrage. What is outrageous is this: The removal of lands from national monument status in the first place, along with the evisceration of dozens of regulations that were put in place to protect those public lands.
President Barack Obama established the Bears Ears National Monument on 1.35 million acres of federal land in 2016 using the Antiquities Act. The designation immediately halted all new oil and gas leasing and the staking of new mining claims (existing mineral rights remained in place, however, as did the ability to file for new grazing rights). Obama left office before the management planning process began.
From Bears Ears National Monument. Photo credit: Jonathan Thompson
A year later, in December 2017, Trump signed the proclamation that shrunk the original monument by about 85%. That re-opened 1.1 million acres to oil and gas leasing and mining claims. The 201,876 acres that remained of the monument remain off-limits to drilling and mining.
The shrinkage immediately faced legal challenges from the tribal nations that proposed the monument in the first place, as well as from environmental groups. Unlike an executive order, the Antiquities Act, passed by Congress in 1906, is a one-way law: A president can use it to protect antiquities, but not to take those protections away. In 1976, Congress passed the Federal Land Management Policy Act, which further strengthened the one-way nature of the Act. Prior to FLPMA, presidents did modify the boundaries of monuments established by their predecessors. However, the actions were never tested in the courts.
Despite the fact that the status of the monument and its boundaries were in legal limbo, the Bureau of Land Management in 2018 started the process of creating a management plan for what remained of the diminished monument. The move was not only premature, but it was also like tossing salt in the gaping wound left by the original shrinkage. And, assuming the courts reverse the shrinkage, it will likely turn out to be a big waste of effort and resources.
In early February, the process was completed when the BLM handed down its approved management plans for the Indian Creek and Shash Jáa units, which make up the post-shrinkage Bears Ears National Monument. The plans do not apply to or affect the 1.1 million acres that were removed from the original monument.
As is typically the case in the crafting of such plans, the BLM put forward several alternatives, from “no action,” which mostly would have kept the status quo on monument lands, to the “environmentally preferred alternative,” which was more restrictive and prescriptive.
In the end, the BLM chose a mash-up of all the alternatives, leaning heavily in the “no action” direction, which the agency says has “fewer land and resource use restrictions” and allows for “review of management actions on a case-by-case basis at the site-specific implementation level.” In other words, while there are slightly more protections than there were prior to monument designation, the plans generally retain the status quo.
Highlights/lowlights include:
Off-highway vehicles will continue to be allowed on designated routes — which are plentiful — but there will be no OHV free-for-all areas. Mountain biking will be limited to designated OHV routes, which are plentiful. OHVs will continue to be allowed in Arch Canyon.
Heavily visited, fragile cultural sites will remain open to the public, but visitor numbers will continue to be limited at Moon House.
Target shooting will be prohibited near rock art sites, but not in other parts of the monument.
The plan puts stricter restrictions on collection of petrified wood and fossils, and puts a few places off-limits to camping and OHV use.
Arch, Mule, Fish, and Owl Canyons, as well as nine tributaries to Butler Wash, will be closed to grazing, but the plan also “facilitates economic opportunities in the local communities supported by tourism, which includes guided tours and dispersed recreation, as well as economic opportunities provided by grazing.” In other words, grazing will continue on most of what remains of the monument.
The plans “maintain or increase existing level of vegetation treatments” for fire management, which could be a justification to do more chaining (which is where a swath of land is cleared of vegetation by dragging a huge chain behind bulldozers, often to convert forests into grazing land).
More specifics will be ironed out in the cultural resource, recreation area/business, and travel management plans, to be formulated over the next several years.
But those particulars are less relevant than the fact that they only apply to a mere fraction of the lands that were protected under the Obama monument designation. The 1.1 million acres taken out of the original monument contain some of the most sensitive, spectacular, and culturally rich areas.
Those who opposed monument designation in the first place argue that the protections afforded by a monument are unnecessary since several layers of regulations already limit or mitigate development on public lands. Yet the Trump administration has gone on a regulatory rollback frenzy, stripping away the rules that were put in place to protect the nation’s land, water, air, workers, and human health. Those 1.1 million acres are all the more vulnerable as a result.
These new management plans don’t change that in any way. They do, however, provide a look at what we can expect if the courts overturn Trump’s monument shrinkage and Trump is re-elected: Most likely, a similar, minimally protective plan will be extended to the restored monument, rendering it little more than a monument in name, only, while attracting more visitors and more damage.
If a Democrat is elected in November, however, they could use the Antiquities Act as it was intended, and re-designate the monument within its original boundaries. Even better, they could designate a bigger monument, one that follows the boundaries originally proposed by the inter-tribal coalition. Then they could toss out the inadequate management plans and start from scratch.
Gov. Jared Polis and members of the Polis administration released the following statement ahead of a federal field hearing in Denver about the Trump administration’s attempt to roll back the National Environmental Policy Act (NEPA), a bedrock federal environmental law.
“While I would strongly support reasonable NEPA reforms that speed up construction permits and reduce red tape, it is troubling to see the White House instead propose changes that would undermine the fundamental purposes of the law and increase the danger of disasters including pipeline leaks and explosions,” said Governor Polis. “Maintaining the federal role as custodians of our environment – to prevent things like costly pipeline spills and contamination – is critical to ensure we protect our state’s most precious environmental resources that support our economy and our way of life.”
Shoshana Lew, executive director of the Colorado Department of Transportation is set to testify at the hearing today.
“When we look to the history of transportation in America, there are countless places where infrastructure fundamentally changed the shape of communities — be it through roads that connected or disconnected neighborhoods; arterials that bifurcated or circulated urban cores; or beautiful mountain highways that put vacation destinations on the map,” said Director Lew. “Transportation infrastructure can grow our economy, connect, and improve peoples’ lives in so many ways, but it can also carry costs — to the natural landscape, to neighborhoods, or to the air that we breathe. For half a century, NEPA has provided a vital framework for assessing those trade-offs.”
“We support reasonable modernization of the National Environmental Policy Act, but these proposed changes fundamentally undermine the law by willfully blinding agencies to the effects of their actions. They will prevent federal agencies from considering the full consequences of their actions and threaten the quality of Colorado’s air, water and soil. Federal agencies will not adequately consider how federal decisions affect ground-level ozone, greenhouse gases and water pollution,” said John Putnam, director of Environmental Operations at the Department of Public Health and Environment.
Putnam and Colorado Energy Office Executive Director Will Toor will also testify at today’s hearing.
“Colorado has adopted science-based emissions targets designed to align our state with the scale and pace of reductions needed to mitigate the worst of climate impacts,” said Colorado Energy Office Executive Director Will Toor. “We are working with businesses and communities across the state to reduce emissions while seizing the economic benefits and consumer cost savings of clean, zero-emissions electricity. The proposed changes to NEPA essentially eliminate all consideration of climate impacts in federal decision-making and will put us at risk for greater harm to our health, economy, iconic landscapes and quality of life.”
Colorado Department of Natural Resources executive director Dan Gibbs also weighed in.
“Since its passage in 1970, NEPA has allowed the State and citizens of Colorado to play informed, meaningful roles in federal decision-making and resulted in better federal projects though consideration of their broader impacts on Colorado’s natural resources and environment,” said Dan Gibbs, Executive Director, Colorado Department of Natural Resources. “I am concerned that a number of the modifications proposed by the Council on Environmental Quality will undermine the fundamental aspects of NEPA that have made it so successful and result in significant negative impacts to our state’s land, water, wildlife and natural resources.”
On Jan. 23, the Trump administration finalized a rule that would remove protections for waterways throughout the country, and as much as 70% of Colorado’s water, according to the Colorado Department of Public Health and the Environment…
The new Navigable Waters rule specifies four protected types of waterways: territorial seas and large rivers and lakes; tributaries that flow year-round; lakes and ponds that are connected to larger bodies; and adjacent wetlands. In the West, where many tributaries don’t flow in warm months, and are being drained and diverted due to infrastructure projects, the amount of impacted waterways is likely to be large…
In the face of the Navigable Waters rule and the NEPA rollbacks, it will be up to Western states to ensure appropriate environmental protections are enacted to mitigate the new rules’ impact.
FromThe Grand Junction Daily Sentinel (Dennis Webb):
Denver next week will be the site of one of two public hearings scheduled nationally on controversial proposed changes by the Trump administration regarding how a 50-year-old environmental law is carried out.
The White House Council on Environmental Quality is proposing what it calls an update to the regulations governing how the National Environmental Policy Act is implemented.
The act requires federal agencies to assess the environmental impacts of actions, including public lands management decisions applying to oil and gas leasing and well permitting, grazing and mining, and other uses. The requirement also pertains to construction of roads, bridges, power lines, water projects and other infrastructure, and the act process provides for public input.
The proposal would streamline the act process, consistent with direction from President Trump. This includes creating presumptive two-year time limits for completing environmental impact statements, which on average now take four and a half years to complete, and creating presumptive one-year limits in the case of less-involved environmental assessments.
It also specifies presumptive page limits on these documents. Agencies on average prepare about 170 environmental impact statements a year and about 10,000 environmental assessments.
The proposal also seeks to reduce unnecessary burdens and delays through facilitating the use of environmental assessments versus environmental impact statements, or categorical exclusions from either of these forms of review. Such exclusions are already applied to about 100,000 agency actions a year.
It also would state that analysis of cumulative effects isn’t required under the environmental policy act. Such analysis is sometimes pushed by entities such as conservation and activist groups. A current lawsuit challenging the Bureau of Land Management’s resource management plan for the Grand Junction Field Office alleges a failure to consider cumulative climate impacts of local oil and gas development in combination with other development under the BLM’s national oil and gas program.
Public hearings on the proposed changes are scheduled Tuesday in Denver and Feb. 25 in Washington, D.C.. People were asked to sign up online for free tickets to attend the Denver event, and all tickets for the morning and afternoon sessions were quickly snatched up. That prompted the addition of an evening session, for which tickets also are gone…
In a Natural Resources Defense Council blog, Gilchrist contends the National Environmental Policy Act process has proven important in Colorado, such as in causing the BLM to defer oil and gas leasing in the North Fork Valley in response to public comments, and resulting in the U.S. Forest Service scaling back plans to clearcut aspen on the Grand Mesa, Uncompahgre and Gunnison National Forests.
Jan. 23, 2020, the Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced the improved definition for “waters of the United States” (WOTUS) with the Navigable Waters Protection Rule. “ The Navigable Waters Protection Rule ends decades of uncertainty over where federal jurisdiction begins and ends. For the first time, EPA and the Army Corps of Engineers are recognizing the difference between federally protected wetlands and state protected wetlands. It adheres to the statutory limits of the agencies’ authority. It also ensures that America’s water protections – among the best in the world – remain strong, while giving our states and tribes the certainty to manage their waters in ways that best protect their natural resources and local economies.”
In March 2014, the Obama administration released a regulation that would assert Clean Water Act jurisdiction over nearly all areas including those with undiscernible connections to water resources and man-made conveyances. Specifically, the Obama WOTUS rule expanded agency control over 60 percent of the country’s streams and millions of acres of wetlands that were previously non-jurisdictional. In September 2019, the Trump administration, EPA and Army Corps of Engineers repealed the controversial 2015 WOTUS rule and proposed a new Clean Water rule clarifying which level of government, federal or state, would oversee water features and dry land that is sometimes wet.
The revised WOTUS definition identifies four clear categories of waters that are federally regulated under the Clean Water Act: the territorial seas and traditional navigable waters; perennial and intermittent tributaries; certain lakes, ponds and impoundments; and wetlands that are adjacent to jurisdictional waters. The final action also details what waters are not subject to federal control, including features that only contain water in direct response to rainfall; groundwater; many ditches, including most farm and roadside ditches; prior converted cropland; farm and stock watering ponds; and waste treatment systems.
Leaders of the National Potato Council (NPC) welcomed the announcement that the U.S. Environmental Protection Agency (EPA) finalized its proposed rule defining the Waters of the United States (WOTUS) rule with the Navigable Waters Protection Rule. EPA’s action also defines what waters are not subject to federal control, including most farm and roadside ditches, prior converted cropland, and farm and stock watering ponds.
“Potato farmers are committed to protecting the nation’s waters,” said Britt Raybould, President of the National Potato Council. “However, the imposition of unnecessary federal burdens, such as regulating ditches on private farms that are generally dry throughout the year, undermines that overall mission by creating uncertainty and increasing costs. EPA’s newly issued rule avoids those negative outcomes and provides increased clarity regarding the responsibilities of farmers under the Clean Water Act in protecting our nation’s surface water resources.”
[…]
Contrastingly, Jill Hunsaker Ryan, executive director, Colorado Department of Public Health and Environment stated, “The EPA’s announcement today is alarming as it puts our precious waters at risk. Every Coloradan, and so many others from neighboring states, are dependent on Colorado’s healthy waterways. At the department, regardless of what happens at the federal-level, we’ll always be committed to the health of our waters. Healthy waters mean healthy Coloradans,” said Jill Hunsaker Ryan, executive director, Colorado Department of Public Health and Environment.
“In the absence of federal leadership, we are going to do everything possible to protect streams and wetlands in Colorado. It’s sad that we have to step up in contrast with our federal government on something so basic as protecting our water, but we must. The rollback removes huge swaths of Colorado’s waters from federal jurisdiction, waters used by 19 states and Mexico. It’s estimated that almost 70 percent of our Colorado Waters could be impacted by this rule. Additionally, the change will impose significant burdens upon the State of Colorado,” said Patrick Pfaltzgraff, director, Water Quality Control Division.
Earlier in the year, the Colorado Department of Public Health and Environment, Colorado Department of Natural Resources, and Colorado Department of Agriculture collectively rebuked the EPA’s proposed rule change.
The Trump administration formally proposed a rule last week that strips away protections that have been in place 50 years for waters all across the U.S. In what is seen as a victory for fossil fuel producers, farmers, and real estate developers, the proposed rule retains protections for large bodies of water, rivers, and streams—but removes safeguards for many wetlands, intermittent streams, and groundwater.
E & E News reports that a group called Public Employees for Environmental Responsibility, made up of current and former EPA scientific advisers, has filed a complaint calling for an investigation into the process leading to the new rule, charging that it was based more on politics than science. They claim that the final rule contradicts the overwhelming scientific consensus on the connectivity of wetlands and rivers and streams. They add that officials instructed staff not to submit comments for the record.
The new rule, which will be implemented in 60 days, is sure to be challenged in court by environmental groups and some state attorneys general. The outcome, if it makes it to the Supreme Court, is not certain. One environmental law expert told Politico that conservative justices on the Court may not like the way the Trump administration ignored both science and the experts it picked to advise the EPA.
A wetland area along Homestake Creek in an area that would be flooded by a potential Whitney Reservoir. The cities of Aurora and Colorado Springs are looking to develop additional water in Eagle County and divert it to the Front Range. Photo credit: Brent Gardner-Smith/Aspen Journalism
Here’s the release from American River (Chris Williams):
The Trump Administration [on January 23, 2020] announced the release of its Revised Definition of the Waters of the United States, a sweeping federal rule that drastically weakens the reach and authority of the Clean Water Act to protect the Nation’s rivers, small streams and wetlands.
In 2001 and 2006, two convoluted Supreme Court rulings created uncertainty about the extent of the Clean Water Act’s jurisdiction. The Obama administration engaged in a lengthy rulemaking process to clarify the authority of the Act to protect small streams and wetlands that are so important to river health and contribute to the drinking water supplies of two in three Americans. Following years of painstaking scientific, economic and legal analysis, hundreds of public meetings, and a comment period that produced over a million comments, the “Clean Water Rule” was adopted in 2015, reaffirming the Act’s broad authority “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
The Trump administration’s rule replaces the Clean Water Rule, undermining protection of rivers, wetlands, and clean water. It uproots decades of regulatory practice and judicial precedent with little public input and virtually no scientific analysis. It is setting aside the findings of over 1,200 peer-reviewed studies, collected in EPA’s own Connectivity Report, that demonstrate the vital importance of small streams and wetlands to the water quality, flow, and overall ecological health of larger rivers downstream. The rule deals a crippling blow to the Act’s authority to protect wetlands, excluding more than half of the nation’s wetlands from the Clean Water Act’s reach, and eliminating protection for almost 20% of the nation’s rivers and streams.
Bob Irvin, President and CEO of American Rivers made the following statement regarding the Trump Administration’s Revised Definition of the Waters of the United States:
“The Trump administration’s Dirty Water Rule is an affront to the health and safety of hundreds of millions of people across the country who depend on rivers and streams for clean water. It is reckless and capricious, reversing the Clean Water Rule which was firmly based on sound legal and scientific analyses, extensive fact-finding and stakeholder input, and broad popular support.
President Trump has frequently said he wants ‘crystal clean water.’ This rule will result in dirty water, plain and simple.”
Fen soils are made of a rich, organic peat material that take thousands of years to form and require a constant groundwater source to survive. At the Rocky Mountain Fen Research Project, scientists transplanted fen soils from another site to the “receiver” site south of Leadville where they restored a groundwater spring to sustain the transplanted soils. Photo credit: Sarah Tory/Aspen Journalism
Elected officials and advocacy groups in Colorado responded to a change to a federal rule on water protections.
The previous rule, called “Waters of the United States,” or WOTUS, was established in 2015 by the Obama administration. That rule, however, was under intense scrutiny by Republicans, property rights groups, and several industries for what they perceived as federal regulatory overreach, citing it’s expansive interpretation.
That rule was repealed by the U.S. Environmental Protection Agency and the Department of the Army in September.
The new rule, called the Navigable Waters Protection Rule, was announced on Thursday at a builders’ industry trade show in Las Vegas.
The Trump administration says the new rule will still protect navigable waters from pollution but also will provide regulatory relief and more certainty for development.
“EPA and the Army are providing much needed regulatory certainty and predictability for American farmers, landowners and businesses to support the economy and accelerate critical infrastructure projects,” EPA Administrator Andrew Wheeler said in a statement. “After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our new Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided.”
The new rule creates four different categories for bodies of water to be federally regulated under the Clean Water Act, and excludes certain types of bodies of water such as ditches.
The new rule drew broad criticism from Colorado Democrats and environmental groups that work in the state.
“In Colorado, we value our clean water. Our rivers, streams, and lakes serve as the lifeblood of our communities and help support our thriving outdoor and agriculture industries,” Gov. Jared Polis said. “Our administration will continue to reject attempts by the Trump administration to gut proven ways to protect our health and environment.”
U.S. Rep. Ed Perlmutter, D-Colo., tweeted that the new rule “removes protections for smaller bodies of water & rolls back federal protections for smaller headwaters that have been protected for almost 50 years – including the Colorado River.”
Western Resource Advocates, an environmental advocacy group headquartered in Boulder, in a tweet urged state lawmakers “to stand w/ their communities & lead where the federal government won’t. We’re calling on our leaders throughout the West to come together & safeguard healthy rivers & clean water.”
Republicans and some industry groups praised the rule change for reducing regulations.
“The uncertain interpretation of the term ‘navigable waters’ created by WOTUS has left farmers, ranchers and private land owners unprotected from federal land and water grabs,” U.S. Rep. Scott Tipton, R-Colo., said “Over the last three years, President Trump’s administration has worked to repeal unnecessary and burdensome regulations with updated versions that better suit the needs of our agricultural communities.”
Don Shawcroft, president of the Colorado Farm Bureau, which advocates for agricultural interests, said the new “rule provides clarity and stability for farmers and ranchers everywhere, ensuring that farmland remains healthy and productive, and our waters protected. It is a major win for Colorado agriculture.”
Both the Colorado Chamber of Commerce and the National Federation of Independent Business-Colorado supported the rule change.
The Environmental Protection Agency and Army Corps of Engineers announced this past week that they will roll back much of the 2015 clean water regulations known collectively as Waters of the U.S.
Whether that’s good or bad depends, as usual, on who you are, but membership in a particular group doesn’t necessarily mean support or opposition is consistent. Most of agriculture seems to be happy, but some ag groups are suing to block the rule rollback…
On the other side of the coin are farmers, ranchers and livestock feeders, along with those who manage surface water in the western U.S., who hailed the rollback as a victory of reason and logic, and respect for states’ rights to manage natural resources within their borders.
Colorado Corn released a statement Thursday in which CCGA President Dave Cure, a Wray, Colo., corn grower, asserted again the claim that farmers are better stewards that they’re given credit for.
“Farmers rely on clean water to make a living and often go above and beyond regulatory requirements to be avid stewards of all their resources,” Cure said. “The new rule clarifies oversight on dry land that is sometimes wet, something the 2015 WOTUS rule did not. These and other improvements allow the kind of farming practices to protect the environment to continue and new ones to be implemented without confusion.”
The Fertilizer Institute also praised the rule rollback saying the new rules “ensure a future with both clean water and clear rules.”
Even in California, supposed bastion of socialist over-regulation, California Farm Bureau President Jamie Johansson said this week’s release of the Navigable Waters Protection encourages farmers and ranchers.
“You won’t find a stronger ally than farmers and ranchers when it comes to protecting land and natural resources, because they depend on those resources to produce food and farm products,” Johansson said. “The new rule promises clear guidelines to help farmers maintain and improve water quality while retaining the flexibility they need to manage their land.”
Those who opposed the 2015 rules charged that the rules were unclear and, thus, overreaching. They claim that the regulations extend the EPA’s and the Army Corps’ regulatory reach over what is termed “navigable waters,” which ranchers, farmers and states argue gives the federal agencies’ unprecedented authority over drainage ditches and nearly anything else that can contain water. It was even supposed, among Logan County water experts, that Pawnee Creek, which runs water only once every few years, would be regulated under WOTUS.
The apparent intent of the rules was to clean up not just America’s major waterways, but also anything that feeds into them. After all, how can the Mississippi River be cleaned up if its tributaries are dumping millions of tons of pollution from upstream into it? Thus, the Big Muddy would best be protected by cleaning up the Missouri, the Platte, the South Platte, the Poudre, the Big Thompson and the Saint Vrain. That might make sense if there was no state oversight of surface water quality in Colorado. But there is. The Colorado Department of Public Health and Environment – a state-sized version of the EPA – has stringent rules about water quality in Colorado, which is why all six municipalities in Logan County are spending millions of dollars to upgrade their water supplies and wastewater treatment systems.
Colorado also has decided that it was wasteful to have both the CDPHE and the Department of Agriculture setting regulations for water and air quality for agricultural producers, so CDPHE turned that regulation over to CDA. Federal oversight of the quality of surface water in Colorado would greatly complicate efforts by ag producers to make a living while still protecting the environment they depend on for that living.
That’s why, in 2015, Colorado’s Attorney General, Republican Cynthia Coffman, joined the attorneys general in 12 other states to sue to block WOTUS. North Dakota led the charge and was joined by Alaska, Arizona, Arkansas, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota and Wyoming, as well as the New Mexico Environment Department and State Engineer. Notice that all but Missouri are western states whose water laws are modeled after Colorado’s Doctrine of Prior Appropriation. It is always a fear in the West that when the federal government gets involved in water regulations, DOPA, also known as the Colorado Doctrine because this is where it was born, will be usurped by federal regulations modeled along the riparian doctrine best known east of the Mississippi. More than a century of water law and interstate compacts could be thrown into turmoil as a result.
Not everyone in the West was unhappy with the 2015 rules, however. According to Pamela King, reporter for E&E News, the New Mexico Cattle Grower’s Association sued the that EPA and the Army Corps of Engineers in October last year claiming that the government cannot revert to 1986 regulations governing which wetlands and waterways are protected by the Clean Water Act. At that time there were 22 states in which the WOTUS rule was still in effect, and it was blocked in 27 other states.
The situation is fluid, so to speak, and a search of newspaper and webzine headlines on the subject shows anywhere from 12 to 18 states trying to block WOTUS and a fresh round of lawsuits shows states lining up to sue to keep the WOTUS regulations.
Through it all both supporters and opponents identify the push and pull by the president in office at the time. The 2015 regulations are called Obama rules, although they were adopted by supposedly autonomous and non-partisan bureaucrats at the EPA and Corps of Engineers; similarly, the repeal is laid at Donald Trump’s doorstep, although it was done by those same agencies after gaining input from myriad citizen organizations.
And Colorado still isn’t quite sure what it wants to do about WOTUS. In September the new attorney general, Democrat Phil Weiser, said that if he thought the EPA rollback went too far, he might take legal action. Attempts by the Journal-Advocate to find out whether that action has been taken yet hadn’t been fruitful by time of publication.
Photo credit: Greg Hobbs
I understand the farmers and ranchers point of view. I don’t worry about them much, they know the pitfalls of modern chemicals used in Ag, strive to be responsible stewards of the land, and know that developed Ag land has an exemption under the 2015 rules. However, the states and the U.S. government needs to keep a tight grip on the extractive industries and irresponsible folks that locate in rural areas and don’t pay for their pollution.
Clean-water rules unveiled Thursday by the Environmental Protection Agency could remove the vast majority of Arizona’s waterways from federal oversight, a change environmentalists call bad news in a region where water is “super precious.”
[…]
While farmers may save legal fees under the new Navigable Waters Protection Rule, the government likely will not.
“We’ll absolutely be fighting it in court,” said Brett Hartl, government affairs director for the Center for Biological Diversity, who said the new rule will be one of President Donald Trump’s “ugliest legacies.”
“This sickening gift to polluters will allow wetlands, streams and rivers across a vast stretch of America to be obliterated with pollution,” Hartl said in a prepared statement.
Critics said the impact will be particularly strong in states like Arizona, where a 2008 EPA study said 94% of the waterways are ephemeral and intermittent – exactly the sort of waterways that will be exempt from federal regulation under the new rule…
The change is the latest step in the Trump administration’s efforts to roll back the Waters of the United States rule enacted under President Barack Obama. The so-called WOTUS rule was a response to complaints by landowners that there was no clear definition of waterways that fell under the regulatory control of the EPA and the U.S. Army Corps of Engineers…
The Arizona Department of Environmental Quality declined comment on the new federal rule Thursday, except to say it is reviewing the proposal to “fully understand how it impacts Arizona waterways.” But, in anticipation of the new federal rule, the state has been working for some time on a Waters of Arizona definition that is aimed to fill gaps left by the federal approach and protect state waterways through a “local control approach.”
Wheeler said federal officials had states in mind when they created their new plan.
“Our new rule recognizes this relationship and strikes a proper balance between Washington, D.C., and the states, and clearly details which waters are subject to federal control under the Clean Water Act, and importantly, which waters fall solely under the state’s jurisdiction,” Wheeler said…
But Rep. Raul Grijalva tweeted that what he called the “#DirtyWaterRule endangers the drinking water for the millions of Arizonans and other Western residents who depend on the Colorado River.” Grijalva, chairman of the House Natural Resources Committee, added that “clean water is a human right.”
[…]
The Center for Biological Diversity cited 75 endangered species that could be threatened by the change, with Hartl specifically noting the yellow-billed cuckoo and the New Mexico meadow jumping mouse, both of which live near streams.
“People and wildlife need clean water to thrive. Destroying half of our nation’s streams and wetlands will be one of Trump’s ugliest legacies,” Hartl said.
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